Sheila I.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 11, 20180120161694 (E.E.O.C. Sep. 11, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheila I.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120161694 Agency No. 4G-335-0194-15 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal from the March 28, 2016 final agency decision (FAD) 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Computerized Forwarding Systems (CFS) Clerk, PS-06/O, at the Agency’s Computerized Forwarding Systems facility in Tampa, Florida. Complainant alleged that on a continuing basis, her supervisors have given her instructions without providing reasons for the instructions. For example, Complainant claimed that she was told on numerous occasions that she could not carry a large bag into the facility, but other employees could do so. In addition, Complainant stated that she was given instructions to not place mail upright in the Mail Recovery, but other employees were not given those same instructions. Further, Complainant claimed that her manager (M1) harassed her for placing her full tubs on rollers and for pulling out a full cage of half trays. 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. 0120161694 2 Complainant claimed that her supervisor (S1-1) falsified a May 7, 2015 safety talk sign-in sheet. Complainant stated that she filed a grievance regarding the matter, contending that S1-1 asked employees to sign for a safety talk that he did not actually provide which he could later use to his advantage for discipline and harassment. Complainant claimed that she was sexually harassed by a co-worker (CW-1) in July 2015. Complainant alleged that CW-1, a mechanic, was bending down acting as if he was looking at a DVD player. Complainant believed that CW-1 was bending down to attempt to “smell [her] crotch,” similar to what Complainant claimed another mechanic had previously done. Complainant stated that she reported the incident to her supervisor (S1-2). S1-2 met with CW-1 in her office following Complainant’s statement to her. CW-1 explained that Complainant had asked him about some items on the belt and asked him to place them somewhere else. CW-1 denied saying or doing anything offensive toward Complainant. S1-2 advised CW-1 to not have any contact with Complainant and monitored the workroom floor for any inappropriate conduct. S1-2 found no evidence corroborating Complainant’s sexual harassment claim. Complainant later emailed union officials alleging that numerous other co-workers had also attempted to smell her crotch or trip her while wiping water up from the floor in front of a water fountain or bending down to tie their shoes. On August 12, 2015, S1-2 placed Complainant on Emergency Placement in an Off-Duty Status to investigate Complainant’s allegations. During the investigation, several witnesses provided statements denying Complainant’s allegations. CW-1 noted that he felt threatened by Complainant and that other employees have told him to stay away from her because she has mood swings and can be unpredictable. Based on several recent instances of bizarre behavior and Complainant’s history of conduct, M1 requested that Complainant undergo a Fitness For Duty Examination (FFDE). On September 9, 2015, Complainant attended the FFDE. The FFDE doctor concluded that Complainant was not fit for duty. On October 19, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment in reprisal for prior protected EEO activity when: 1. On a continuing basis, Complainant was given specific instructions regarding work methods and postal policies and other employees are not given the same instruction; 2. On May 7, 2015, Complainant’s supervisor falsified documentation regarding a safety talk; 3. On July 30, 2015, Complainant was sexually harassed by a co-worker; 4. On August 12, 2015, Complainant was put on Emergency Placement in an off- duty status; and 5. On September 9, 2015, Complainant was sent for a Fitness for Duty appointment. 0120161694 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's request the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency found that there was no evidence that the conduct at issue was based on retaliatory animus. More specifically, as to instructions, management officials stated that they gave all clerks instructions to help meet the established policies and procedures and if Complainant did things contrary to the Agency’s policies and procedures then they would instruct her again. M1 stated that Complainant and another co-worker were instructed that no tote bags were allowed on the workroom floor, but Complainant was “obsessed” and filed multiple grievances regarding this issue. M1 further noted that she had instructed Complainant to not leave her work area to sweep her few pieces every time the belt was cleared. S1-1 added that he provided Complainant reminders and updates as well as addressed performance issues and time-wasting practices. With respect to the safety talk, S1-1 explained that he began reading mandatory talks in their entirety on May 1, 2015, but that not everyone was present for various reasons. S1-1 stated that he continued reading the talks until he had full coverage, which was on May 7, 2015. S1-1 averred that if anyone was out sick or on a long vacation, he would read it to them upon their return. M1 noted that S1-1 would use the same sign-in sheet for the clerks who attended the safety talk later, but Complainant would claim that it was falsification. As to the Emergency Placement, S1-2 stated that Complainant was put on Emergency Placement because of her email to union officials alleging that five different employees were trying to cause her to have an accident or to “sniff her crotch.” S1-2 affirmed that she informed Complainant that management would investigate her allegations. Regarding the FFDE, S1-2 explained that she recommended that Complainant be sent for the examination due to her bizarre behavior that had progressively gotten worse. The purpose of the examination was to determine whether Complainant could safely and effectively perform the duties of her position. The request noted that Complainant had reported that five employees attempted to smell her crotch and included the statements from accused individuals attached to a threat assessment request. Finally, with respect to her sexual harassment claim, S1-2 stated that Complainant reported to her that CW-1 was “closing [her] off and smelling her crotch just like [former co-worker] used to do.” S1-2 affirmed that once she determined who Complainant was talking about, she immediately investigated the incident. S1-2 ultimately determined that there was no evidence supporting Complainant’s claim and instructed CW-1 to have no contact with Complainant. S1- 2 stated that she watched the workroom floor and CW-1 did not look in Complainant’s direction, but that Complainant moved her seat closer to where CW-1 sat and was seen cutting through the area where he sat. 0120161694 4 The Agency determined that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to reprisal or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she has been subjected to continuous harassment. Complainant claims that management officials provided false statements during the investigation. Complainant argues that the Agency’s doctor will say whatever management wants and is not fair to both parties. Complainant denies that she moved closer to the maintenance area and CW-1 and claims that she took the quickest path to the clock to not be late. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Hostile Work Environment – Non-Sexual Harassment To establish a claim of harassment a 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission notes that Complainant chose not to request a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on her protected classes, management officials subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be retaliatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on 0120161694 5 retaliatory animus. For example, as to her instructions, M1 stated that she only gave Complainant basic instructions to help her meet the established policies and procedures. ROI, at 128. M1 added that if Complainant acted contrary to instructions, then she was given the instructions again. Id. Likewise, S1-2 confirmed that she gave Complainant instructions and directives to correct time-wasting practices and behavior issues. Id. at 150. Regarding the safety talk, S1-1 explained that he held safety talks in May 2015, and that he would read them later to employees who were out until he had full coverage. Id. at 178. M1 added that S1-1 used the same sign-in sheet for the make-up talks and Complainant incorrectly viewed that as falsification. Id. at 133. As to the Emergency Placement and FFDE, S1-2 affirmed that she placed Complainant in the off-duty status and requested the examination based on Complainant’s bizarre behavior that progressively got worse. ROI, at 160-61. S1-2 stated that Complainant had reported that co- workers were trying to sniff her crotch or cause her to have an accident, and management decided to place her in the off-duty status to investigate the matter. Id. at 160. Complainant had previously been sent for FFDEs and had a history of similar behavior. Id. at 218-19. Additionally, co-workers submitted statements indicating that they felt unsafe or uncomfortable around Complainant. Id. at 225, 235. The FFDE doctor ultimately determined that Complainant was unfit for duty and Complainant was placed on sick leave. Id. at 137. Hostile Work Environment – Sexual Harassment To establish a claim of sexual harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to her sex, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer, in other words, did the agency know or have reason to know of the sexual harassment and fail to take prompt, remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The Commission again notes that it does not have the benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds that Complainant has not established, by a preponderance of the evidence, that she was subjected to sexual harassment. More specifically, the Commission finds Complainant failed to show that the alleged sexual incidents occurred. Complainant failed to offer any corroborating evidence to support her contentions that she was subjected to any unwelcome conduct of a sexual nature. Nonetheless, even assuming that the conduct occurred as alleged, the record shows that management initiated an investigation into the allegations immediately after she reported the incident. S1-2 stated that 0120161694 6 there was no evidence supporting Complainant’s claims, but she nonetheless instructed CW-1 to stay away from the area where Complainant was sitting. ROI, at 157. S1-2 affirmed that she monitored the workroom floor and saw that CW-1 did not even look at Complainant’s direction following her instructions. Id. Complainant did not allege that any similar alleged conduct recurred. As a result, the Commission finds that Complainant has not established that she was subjected to sexual harassment as alleged. Fitness for Duty Examination Finally, the Commission will determine whether the Agency violated the Rehabilitation Act by sending Complainant for an FFDE. The Commission notes that whether Complainant is an individual with a disability is irrelevant to the issue of whether the Agency properly ordered her to undergo a FFDE because the Rehabilitation Act’s limitations regarding disability-related inquiries and medical examinations apply to all employees. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No. 915.002 (July 27, 2000). The inquiry may be made or the examination ordered only if it is job-related and consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of her job or pose a direct threat because of a medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002 (July 27, 2000), at Q.5. Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with her ability to perform essential job functions or will result in direct threat. Id. It is the burden of the employer to show that its disability-related inquiries and requests for medical examination are job-related and consistent with business necessity. See Cerge v. U.S. Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007). Here, as discussed above, the record reveals that management sent Complainant for the FFDE based on Complainant’s recent bizarre behavior, past conduct, and co-workers’ statements that they felt uncomfortable working with her. Specifically, Complainant reported that co-workers had bent down around her to sniff her crotch or cause her to have an accident. The allegations were investigated, but management could find no evidence that the conduct at issue was intended to harass or harm Complainant. Further, several employees requested to file threat assessment reports regarding Complainant’s behavior. Thus, the Commission finds that there was nothing unlawful about the FFDE as the Agency has established that management ordered the FFDE based upon objective evidence that Complainant may have been unfit to safely perform the essential functions of her job. After reviewing the record and considering the arguments on appeal, the Commission finds that Complainant has not shown that she was subjected to a retaliatory hostile work environment. Furthermore, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that she has not shown that the Agency’s reasons for its actions were a pretext for unlawful reprisal. Accordingly, the Commission finds that Complainant has 0120161694 7 not established that she was subjected to reprisal or a hostile work environment as to all claims alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that reprisal occurred. 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). 0120161694 8 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 September 11, 2018 Date Copy with citationCopy as parenthetical citation