Sacha K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 11, 20180120171244 (E.E.O.C. Dec. 11, 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 (Southern Area), Agency. Appeal No. 0120171244 Agency No. 1G-731-0019-16 DECISION On February 18, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 17, 2017, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant did not prove she was subjected to unlawful discrimination or harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-6, at the Agency’s Processing and Distribution Center (P&DC) in Oklahoma City, Oklahoma. 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. 0120171244 2 On June 27, 2016, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against her based on disability (On-The-Job Injury, Limited Use of Shoulder and Hands) when: 1. On February 5, 2016, she was spoken to in a loud tone of voice; 2. On February 7, 2016, while on the workroom floor she was questioned regarding her end tour; and 3. From February 9, 2016, she has not been permitted to work overtime.2 Regarding claim 1, Complainant stated that she was spoken to in a loud voice by her co-worker (C1) from Pay Location 122, Revenue Protection Office (RPO). Complainant further stated that C1 alleged Complainant was not doing her work duties properly due to her disability, and because of that, she should not be allowed to work overtime in RPO. Regarding claim 2, Complainant stated that the Supervisor, Distribution Operations (SDO), upon the instruction of the current Manager, Distribution Operations (MDO-1), asked Complainant what time she leaves in front of her co-workers, even though Complainant had been working the same shift for the past two years as part of a modified job offer given to her by the SDO. Regarding claim 3, Complainant stated that MDO-1 disallowed Complainant from working overtime due to the management’s decision that overtime help was needed primarily to case mail in the 030-outgoing-manual operation (030), which the SDO relayed to Complainant. Complainant asserted this was discriminatory because she is not allowed to case mail because of her work restrictions from her on-the-job injuries. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged. CONTENTIONS ON APPEAL On appeal, Complainant points out that overtime is scheduled by sections according to the Local Memorandum of Understanding (LMOU). She highlights that RPO, where she completed overtime in the past, is included within the broader “outgoing manual” craft section, as it pertains to overtime, per the LMOU. 2 In her investigative affidavit, Complainant withdrew her claim that, since February 6, 2016, she has been required to work weekends while junior co-workers have been scheduled off. 0120171244 3 Complainant also notes that previously then-senior MDO (S-MDO) and SDO allowed Complainant to work overtime in RPO when overtime was scheduled for section 030. Complainant further contends that the management’s current method of assigning overtime has a disparate impact on individuals with disabilities or other limitations. Complainant also asserts that she and her colleagues saw C1 point in Complainant’s direction and overheard her complain about Complainant being allowed to work overtime “if she is on light duty” to MDO-1. Additionally, Complainant provides two years of clock-ring timesheets indicating that she previously worked overtime while in RPO. Further, Complainant reasserts that she previously provided two signed witness statements which support her contention that Complainant was singled out because of her light duty status by C1 to management. The Agency does not present any arguments on appeal. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Disparate Treatment Where a discriminatory harassment claim consists of discrete acts that also independently state timely claims outside of a harassment framework, such acts may be reviewed as disparate treatment claims. Conlin v. Department of Veterans Affairs, EEOC Appeal No. 0120055310 (December 5, 2006), request for reconsideration denied, EEOC Request No. 0520070658 (February 6, 2008). Here, claim 3 independently states a claim beyond the harassment framework. See Reddick v. U.S. Postal Serv., EEOC Appeal No. 01960519 (Jan. 15, 1998) (noting in contrast to the harassment framework, discrete acts include terms, conditions, or privileges of employment such as hiring, termination, compensation, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty). Generally, claims of disparate treatment based on disability are examined under the three-step analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, complainant must establish a prima facie case 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. 0120171244 4 McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the Agency must articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Here, to establish her prima facie case, Complainant names a few comparator employees. Comparative evidence relating to other employees is relevant only if the employees are similarly situated such that all relevant aspects of the employees’ work situation are nearly identical. See Anderson v. Dep't of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). However, Complainant has not shown that other similarly situated employees, who were not part of Complainant’s protected class and have a work-restriction against casing mail, were allowed to work overtime. See Wade H. v. U.S. Postal Serv., EEOC Appeal No. 0120151947 (Aug. 2, 2017) (holding employees are not considered to be “similarly situated” if complainant and the employee have different medical restrictions). Instead, Complainant only compared herself to employees who, unlike her, did not have restrictions that precluded them from casing mail. Complainant has not provided any other evidence from which a prima facie inference of disability discrimination could be established. Therefore, we find that Complainant did not establish a prima facie case of discrimination. Assuming arguendo that Complainant established a prima facie case, the Agency still articulated legitimate, nondiscriminatory reasons for its action. Specifically, the Agency explained that Complainant was denied overtime based on management’s decision that overtime help was needed primarily to case mail, which Complainant is unable to do due to her work restrictions. The Agency has also provided comparative evidence of two employees who did not case mail, and as such, are not permitted to work overtime. In an effort to show pretext, Complainant maintains that she was previously allowed to work overtime in RPO under S-MDO. However, new manager MDO-1’s decision to break from prior practice, is not enough to prove pretext. See Boone v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120055570 (Oct. 16, 2007) (affirming that supervisor has discretion to make unpopular decisions that break from prior practice, the business wisdom of which will not be second-guessed absent evidence of discriminatory motive); see also Bryant v. Dep’t of Agric., EEOC Appeal No. 0120110021 (June 9, 2011) (holding misapplication of rules alone is not sufficient to show discriminatory animus). Complainant’s subjective belief of discriminatory animus is not persuasive evidence. See Chatman v. Dep’t of the Army, EEOC Appeal No. 0120080445 (Aug. 7, 2009). Without proof of a demonstrably discriminatory motive, the wisdom of the Agency’s business decisions may not be second-guessed. Mendez v. U.S. Postal Serv., EEOC Appeal No. 0120090593 (May 20, 2010). Therefore, we find that Complainant has not shown that the Agency’s nondiscriminatory explanations for its actions were pretext for unlawful discrimination. 0120171244 5 Harassment To establish a claim of harassment on the basis of disability, Complainant must show that: (1) she belongs to a 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. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (August 5, 1999). 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 v. Forklift Sys., 510 U.S. 17, 21 (1993). Here, taking all the claims together as a whole and even assuming Complainant’s version of events is accurate, the alleged incidents were not sufficiently severe or pervasive enough to create a hostile work environment. See Shealey v. Equal Emp’t Oppr’ty Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (noting petty slights and simple lack of good manners, alone, do not constitute discrimination). Further, Complainant and her colleagues’ subjective belief of discriminatory animus, alone, is not sufficient to establish that the conduct of SDO or MDO-1 was motivated by Complainant’s disability, as opposed to the desire for uniform enforcement of management’s decision regarding overtime. Complainant v. Dep’t of Labor, EEOC Appeal No. 0120114021 (Sept. 19, 2013) (holding mere assertions and subjective beliefs are not evidence sufficient to prove discriminatory harassment). Finally, the Agency provided legitimate, non-discriminatory explanations for its actions that were not proven by Complainant to be pretextual. See Hana D. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141019 (July 28, 2016). Therefore, we find that Complainant has not shown that she was subjected to unlawful harassment. Disparate Impact To establish a prima facie case of disparate impact, Complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of her protected class. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). To do this, Complainant must present statistical evidence that establishes a statistical disparity that is linked to the challenged practice. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). Here, we note that Complainant did not raise disparate impact in her complaint or during the investigation, but raised it in her statement in support of her appeal. Additionally, Complainant has not provided any evidence that would establish a statistical disparity linked to an Agency practice or policy. Therefore, we find that Complainant has not established disparate impact based on disability in this case. 0120171244 6 CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision for the reasons set forth in this decision. 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. 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). 0120171244 7 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 December 11, 2018 Date Copy with citationCopy as parenthetical citation