Sallie M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 20180120150986 (E.E.O.C. Feb. 9, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sallie M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120150986 Agency No. 1G336003214 DECISION On December 27, 2014, 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 December 12, 2014, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Mail Expediter (TME) at the Agency’s Tampa Processing and Distribution Center (PDC) facility in Tampa, Florida. Her immediate supervisor at the Tampa PDC was the Supervisor of Distributor Operations (SDBO) and Complainant named him as the manager responsible for the discrimination. SDBO was not the named responsible official for Complainant’s prior EEO complaints and he did not supervise Complainant at the time. 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. 0120150986 2 On May 17, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of color (dark brown), age (56), and in reprisal for prior protected EEO activity when: 1. On December 18, 2013, she learned that an employee she felt threatened by was returning to work; 2. Since December 18, 2013, and continuing, she has been denied her choice of assignments; 3. Since December 18, 2013, and continuing, she has been denied computer access; 4. Since December 18, 2013, and continuing, she has been denied training time; 5. On January 15, 2014, she was denied choice vacation; 6. On January 15, 2014, she was advised that she would not be paid for requested sick leave unless additional documentation was provided; 7. On January 15, 2014, she was summoned to the manager's office for a zero tolerance meeting; 9. On June 19, 2014, and June 27, 2014, she was scheduled to work with coworkers who she reported harassed her; 10. On July 3, 2014, she received an Investigative Interview, and she was issued a Letter of Warning dated July 11, 2014, for Unsatisfactory Performance/Failure to Follow Instructions; and 11. Complainant received a letter dated July 24, 2014 denying her request for advanced sick leave.2 After 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 Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant’s request, 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 as alleged. 2 Claim 8 (undefined in the record) was dismissed by the Agency for failure to state a claim under 29 C.F.R §1614.107(a)(1). Complainant does not contest this dismissal on appeal and we shall not address the dismissal in this decision. 0120150986 3 Specifically, with respect to Claim 1, the Agency found that in November 2013, Complainant reported ongoing harassment by a TME (CW1) to PDC management officials and to the Postal Inspection Service (IS). Initially, CW1 was issued an emergency placement (pending investigation), escorted off the premises, and instructed not to return until further notice. The Agency’s Threat Assessment Team conducted an investigation and decided that CW1 was not a threat but should be suspended without pay for one week. Consequently, management directed SDBO to return CW1 to work on December 16, 2013. On learning that CW1 had been returned to work, Complainant expressed her fear to SDBO that CW1 would carry out her threats against Complainant. SDBO explained that he had sought removal of CW1 because of her history of violent outbursts but that his bosses had overruled him. Complainant stated that SDBO advised her to learn to work with CW1. Complainant alleged the Agency’s action constituted discrimination based on color and age because employees who were lighter skinned and younger were given preferential treatment. The Agency determined that Complainant had not been subjected to a hostile work environment because the Agency had investigated her report of threats by CW1 and articulated a legitimate nondiscriminatory reason for why CW1 was returned to the workplace, which Complainant did not prove was pretextual. Additionally, the Agency found no evidence that the alleged harassing conduct occurred because of her age, color, or prior EEO activity. The Agency also found that Complaint had not suffered retaliation because SDBO stated that he was not aware of Complainant's prior EEO activity. With respect to Claim 2, regarding the denial of a choice assignment, Complainant stated that she did not make this claim. She explained that the issue actually was the denial of computer access and training as delineated in Claims 3 and 4. Nonetheless, the Agency found that Complainant had not been subjected to discrimination because Complainant did not show that the Agency’s explanation that a TME does not get to choose assignments was a pretext for discrimination. Regarding Claim 3, Complainant stated that when she became a TME in August 2013, she was not provided a password or given computer access by SDBO. Complainant stated that she made several requests for a password. After a mandatory meeting by two PDC Managers of Distribution Operations (MDBO1 and MDBO2) to address Complainant’s allegations of harassment, MDBO1 instructed the office clerk to issue Complainant a password, which gave her access to the computer. Complainant maintained that she was without computer access from August 2013 until May 2014. The Agency determined that Complainant was not subjected to discrimination. SDBO stated that Complainant had not been denied computer access and he was unaware of Complainant's prior EEO activity. If Complainant’s computer access was delayed, the Agency found that Complainant failed to set forth evidence concerning how the denial of computer access materially affected a term or condition of her employment or was based on her color, age, or prior EEO complaints. Finally, the Agency found that Complainant failed to show how the named comparators were treated more favorably than Complainant. 0120150986 4 Concerning Claim 4 that Complainant was denied training, Complainant clarified that she had not been given the opportunity to train, as far as remaining on one dock at a time, long enough to be proficient. She stated that, instead, she was moved from dock to dock and not trained, and thus had to rely on her personal notes and assistance from other employees. SDBO stated that Complainant had not been denied training and he had no knowledge of Complainant’s protected activity. Other than Complainant’s assertion that her comparators received more training time, the record was devoid of evidence relative to on-the-job training for the Complainant and her comparators. Finally, Complainant did not produce any evidence establishing that her color, age or prior EEO complaints were a factor in her training time or that her comparators received more, better, or different training. With respect to Claim 5, Complainant stated that her first choice request was for 80 hours of leave covering December 26, 2014 to January 10, 2015. Complainant stated that her second request was for 40 hours of leave covering November 25, 2014 to December 3, 2014. On January 4, 2014, both of her requests were denied. SDBO explained that Complainant was junior in her pay location and the quota was full, but he placed Complainant first on the waiting list. Complainant argued that her first choice was given to a senior employee who requested 32 hours of leave, but forty hours of leave is required when issuing choice vacation. Complainant also stated that the quota was not full for her second choice. The Agency determined that there was no discrimination because Complainant was not the most senior TME in SDBO’s unit and the Agency’s collective bargaining agreement stated that choice vacation is awarded based on section seniority. Complainant did not present any evidence to establish that the actions taken were contrary to the National Agreement or that the stated reason was pretextual. Further, Complainant failed to demonstrate how management's actions constituted harassment based on her membership in protected classes. The Agency found that Complainant failed to establish reprisal since SDBO was not aware of her prior EEO activity. Regarding Claim 6, the Agency found no discrimination when SDBO requested documentation before paying her for leave taken pursuant to the Family and Medical Leave Act (FMLA). SDBO stated that he requested additional medical documentation because Complainant had been on sick leave for more than three days and returned to work without appropriate documentation. The Agency found that Complainant did not demonstrate that management's explanation was pretextual. The Agency also found that because SDBO did not know of Complainant’s prior EEO activity, the Agency found that Complainant was not able to establish a prima facie case of reprisal. Concerning Claim 7, the Agency found that management's attempt to review its Zero Tolerance Policy with Complainant after the conclusion of an investigation of harassment was a legitimate reason for a meeting with employees. The PDC Manager of District Operations (MDO) explained that due to previous issues between Complainant and CW1, a meeting was requested with Senior MDO to discuss with both employees the Zero Tolerance Policy in place at the Tampa PDC. When Complainant expressed concern about CW1 being present at the meeting, the Senior MDO agreed to meet with them separately. Complainant, however, never attended her meeting. The Agency found that Complainant offered no evidence showing that the 0120150986 5 Agency’s reason for the meeting was a pretext for discrimination. The Agency found that Complainant failed to show that similarly situated people were treated differently. Thus, the Agency concluded that Complainant had not been subject to discrimination. Regarding claims 9 and 10, according to MDBO2, on June 19, 2014, Complainant was assigned to work the North dock, but she ended up on the South dock. SDBO addressed the matter with Complainant and advised her that if such behavior continued, an investigative interview would be conducted for possible discipline. MDBO2 explained that management jointly agreed that for issues to cease among the TMEs, they needed to be fair, rotate everyone, and treat all with dignity and respect and expect the same from all the employees involved. On June 27, 2014, Complainant was assigned to the South dock extension for training. The record indicates that MDBO2 reassigned Complainant to the North dock because it was short- staffed due to employee illness. The South dock SDBO told MDBO2 that he had given Complainant time off to complete her EEO affidavit in this case. MDBO2 told him the jobs needed to be done first. MDBO2 met with Complainant and her union steward at which time Complainant reiterated her concerns of being placed in a hostile work environment. MDBO2 again directed Complainant to work the North dock after she finished lunch. She also told Complainant that she could work on her EEO matter at 0530. When Complainant failed to show up at the North Dock, SDBO conducted an investigation and issued Complainant a Letter of Warning (LOW) for Unsatisfactory Performance/Failure to Follow Instructions. The LOW indicated that Complainant failed to provide a satisfactory explanation for her failure to follow instructions and that following the instructions of a manager or supervisor is required, not optional, under Part 665.15 of the Employee and Labor Relations Manual. The LOW stated that it served to impress upon Complainant the seriousness of her actions in hope that future discipline would not be necessary. The Agency determined that there was no evidence that Complainant was subjected to a hostile work environment based on her protected classes, especially since she did not report to work on June 27, and because the Agency’s disciplinary action was consistent with policy. SDO stated that Complainant did not notify him of any hostile conduct that occurred on June 19 or 27. The record also contained no evidence that the alleged comparators did not have to report to work with employees who had been reported to management. Finally, there was no evidence to corroborate Complainant’s statement that the comparators openly and blatantly failed to follow instructions, engaged in gross profanity directed at managerial officials, left their assigned work areas, or violated several office rules daily without risk of discipline. With respect to Claim 11, Senior MDO explained that after he received Complainant’s request for advance leave of 240 hours, he reviewed Complainant’s attendance record and found that despite over 26 years with the Agency, she had a balance of zero hours sick leave due to use of nearly 2,700 hours. Based on this analysis, Senior MDO denied Complainant’s request because he had doubts regarding her ability to repay the advanced sick leave within a reasonable amount of time and he believed that loaning her 240 hours of leave or the equivalent of $6,500 presented a financial risk to the Agency, which was already facing an economic crisis. 0120150986 6 ANALYSIS AND FINDINGS 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 lawâ€). With respect to Claim 5, we find that the record is clear that Complainant was not the most senior TME in SDBO’s unit. The Agency’s collective bargaining agreement stated that choice vacation is awarded based on section seniority. Complainant did not present any evidence to support her assertion that the actions taken were contrary to the National Agreement or that the stated reason was pretextual. Regarding the entire complaint, including Claim 5, we find, that the Agency has set forth legitimate, nondiscriminatory reasons for all of its actions. We find that Complainant has failed show that the Agency’s legitimate, nondiscriminatory reasons were a pretext for discrimination. We also find that Complainant has failed to show that similarly situated persons were treated more favorably than Complainant with respect to the claims in this complaint. CONCLUSION The Agency’s decision finding of no discrimination is AFFIRMED. 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 0120150986 7 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). 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 February 9, 2018 Date Copy with citationCopy as parenthetical citation