Sacha K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 20180120172107 (E.E.O.C. Nov. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sacha K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120172107 Agency No. 1F-946-0065-16 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 4, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency’s Oakland Processing and Distribution Center in Oakland, California. On December 15, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency subjected her to discrimination and harassment based on race (African-American), sex (female), color (black), disability2, and in reprisal for prior protected EEO when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Complainant states in her affidavit that she has occasional acne abscesses. 0120172107 2 1. on or about September 3, 2016, and other continuing dates, Complainant’s Supervisor (“S1”) charged Complainant Absent Without Leave (“AWOL”) for Complainant’s Family Medical Leave Act (“FMLA”) protected absences; 2. on September 9, 2016, Complainant was issued a Letter of Warning; 3. on September 23, 2016, and ongoing, S1 subjected Complainant to a hostile work environment by calling her names, bumping into her, continually watching her while she worked, delaying her breaks, and otherwise harassing her; 4. on September 29, 2016, Complainant was issued a Notice of Seven Calendar Day Suspension; and 5. in December 2016, Complainant was issued a Notice of 14-Day Suspension. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant requested that the Agency issue a final decision. On May 4, 2017, the Agency a final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3 The Agency initially dismissed claims 1 and 5 on procedural grounds but ultimately decided to discuss these claims and the remaining claims on the merits. The instant appeal followed. On appeal, Complainant argues that she only worked at the Oakland PD&C and not the Seneca Post Office as the Agency states in its final decision. Complainant also reiterates that she was verbally and physically harassed. Complainant clarifies that neither the union or the Agency informed her who to contact regarding her FMLA, she “did not bypass,” and she “did what [she] knew to do at the time.” ANALYSIS AND FINDINGS Desperate Treatment – Claims 1, 2, 4, and 5 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 3 We presume, for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. 0120172107 3 See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant’s supervisor (“S1”) (African American, Black, Female) stated, regarding claim 1 that Complainant was charged AWOL on September 16, 17, 18, 24, and 25, 2016 because Complainant “fail[ed] to call the Interactive Voice Responses system to record her absences.” S1 clarified that Complainant never requested leave for September 3, 2016. The record contains a copy of the Agency’s Official Leave Policy, dated March 2013, instructing employees “to call the Interactive Voice Response (“IVR”) System at 1-877-477-3273 whenever they are not able to report to work as scheduled.” The policy further stated that calls to the IRV system would be sent to the employee’s supervisor “who will make determinations regarding leave approval and FMLA protection.” The record also includes copies of Complainant’s phone logs from September 2016 through October 2016. The phone logs indicate that Complainant called the IVR system using the provided number on September 15, 2016, October 1, 2016, October 3, 2016, and October 4, 2016. A copy of the Leave Usage Log List Report indicates that Complainant was charged AWOL on September 16, 17, 18, 24, and 25, 2016. A copy of the Agency handbook for time and attendance, effective August 2009, states that “[a]ll employees who are absent without notification or permission are considered AWOL . . .” Regarding claim 2, S1 stated that Complainant received the letter of warning because Complainant had unscheduled abscesses that were not approved, Complainant had “irregular and unsatisfactory attendance,” and Complainant “fail[ed] to meet the attendance requirement.” S1 further cited several sections (section 511.43 – Employee Benefits-Leave-Employee Responsibilities; section 665.41 – Postal Service Standards of Conduct-Attendance-Requirement of Regular Attendance; and section 665.42 – Postal Services Standard of Conduct-Attendance- 0120172107 4 Absence Without Permission) of the Employee Labor Manual in support of her issuance of the Letter of Warning. The record includes a copy of the Letter of Warning, dated September 9, 2016. The letter states that Complainant was charged with “irregular and unsatisfactory attendance,” Complainant failed to report for duty as scheduled, and Complainant failed to follow instructions. The letter also cited relevant sections of the Employee and Labor Relations Manual regarding the Agency’s time and attendance polices. Regarding claim 4, S1 explained that she provided the Distribution Operations Supervisor (“S2”) (Mexican-American, brown, female) with Complainant’s Requests for or Notification of Absence. S1 further explained that she had S2 issue the 7-day suspension because Complainant had a temporary restraining order against her. The Acting Distribution Operations Manager (“M1”) (Punjab/Asian, light brown, male) explained that Complainant was issued the 7-day suspension for continued irregular attendance, failure to report to duty as assigned/and required, and failure to follow instructions. The record contains a copy of a September 22, 2016 Just Cause Interview where the Agency provided Complainant the opportunity to explain her unexcused absences. The interview indicates that Complainant left and stated that “she’s not sitting here to listen to this bullsh*t.” The record also contains a copy of the notice of 7-day suspension, dated September 29, 2016. The letter states that Complainant was charged with absence without permission (AWOL) and indicates that Complainant failed to report for duty from September 16, 2016, through September 19, 2016. The letter further states the Complainant was informed of the attendance policies through orientation and posted policy statements as well as through Complainant’s prior corrective discipline. The Leave Usage Log List Report indicates that Complainant was AWOL on the dates listed in the notice of 7-day suspension. Regarding claim 5, S2 stated that Complainant was issued the 14-day suspension for “failure to improve attendance [and] failure to comply with attendance policies.” M2 stated that he concurred with S2’s decision to issue the suspension and the Employee Labor Manual and Official Leave Policy supported this disciplinary action. We note that all managers and supervisors stated that they were unware of Complainant’s prior EEO activity. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on her race, sex, color, disability, and reprisal for prior EEO activity. 0120172107 5 Harassment – Claim 3 In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment.” The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. To establish a claim of harassment, Complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment.” Harris, 510 U.S. at 21. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a “general civility code.” Id. In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. Complainant alleges that S1 called her a “punk” and winey,” and bumped her elbow against Complainant’s head. Complainant further alleges that S1 continually watched her while she was working and S1 allegedly delayed Complainant’s breaks. S1 testified that she never called Complainant any names, denied bumping into Complainant’s head, and denied that she delayed Complainant’s breaks. M2 stated that he questioned S1 about Complainant’s allegation that S1 was watching Complainant while she was working and M2 determined that S1 was just performing her duties at the time. 0120172107 6 We find that considering these allegations, even if true, Complainant has not shown evidence that considerations of her race, color, sex, disability, or retaliatory animus motivated management’s actions toward Complainant. We further find that the incidents Complainant alleges were not sufficiently severe or pervasive as to constitute hostile work environment/harassment under Commission regulation. The incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. Because we affirm the Agency’s finding of no discrimination on all the subject claims, we find it unnecessary to address the Agency’s procedural dismissal of several claims. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 0120172107 7 Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 2, 2018 Date Copy with citationCopy as parenthetical citation