0120142212
06-14-2016
Sheryl S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sheryl S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120142212
Agency No. 4G-770-0089-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 30, 2014 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's De Moss Station in Houston, Texas.
On April 25, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of national origin (African-American) and sex (female) when:
1. on January 3, 2013, her supervisor harassed her by walking with her on her route for the entire day;
2. on February 11, 2013, management would not accept her documentation to return to work and she was told to get "off the clock;"
3. on March 8, 2013, she was accused of being on the phone while driving a US Postal Service vehicle, and was put off the clock;
4. she was not scheduled to work on March 11, 2013; and
5. she was issued a Notice of Suspension (No-Time Off) of 7 Days dated April 17, 2013, for Unsatisfactory Safety Performance/Unsatisfactory Work Performance.
After the investigation of the complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, the AJ issued a document entitled "Order of Dismissal of Hearing Request and Remand as Sanction" dated March 24, 2014, dismissing Complainant's hearing request, finding that Complainant had not complied with the AJ's orders. Consequently, the Agency issued the instant final decision on April 30, 2014, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of national origin and sex discrimination. The Agency further found that assuming arguendo Complainant established a prima face case of national origin and sex discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on national origin and sex. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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. 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. The Supervisor, Customer Service stated that in regard to claim 1, on January 3, 2013, the station was conducting street reviews on the carriers. The supervisor stated that she had a computer list of the names and routes of the "top opportunity" carriers.2 Specifically, the supervisor stated "I went into the computer and it provided the names and routes of the 'top opportunity' carriers. Therefore, I went out to the routes with this information. I walked the route with the first 'top opportunity' carrier that I saw. I walked with Complainant on the remainder of her route. I merely conducted a PS 3999 and did not harass Complainant in any way."
Further, the supervisor stated that she was not with Complainant on her route the entire day "as Complainant had made some deliveries prior to my locating her and walking with her."
Regarding claim 2, Complainant alleged that she was on sick leave for approximately 1-3 days prior to February 11, 2013. The Manager, Customer Service stated that on February 11, 2013, Complainant provided medical documentation "that had restrictions that she would not be able to perform her duties. She was told she could not work based on the documentation. Complainant subsequently went back to her medical provider and returned later in the day with documentation that would allow her to work. By the time Complainant returned to work, her route had been assigned out. Management could not hold her route all day. However, when she returned to work, she was offered work but she refused the work and went home."
With respect to Complainant's allegation that the Manager instructed her to get off the clock, the Manager stated that when Complainant returned to work "she stated to me that she 'was not on the clock.'"
Regarding claim 3, the Manager stated that on March 8, 2013, Complainant was placed on Emergency Placement "because she violated postal policy by endangering the safety of herself, coworkers, and the public."
Regarding claim 4, the Manager stated that Complainant was not scheduled to work on March 11, 2013 because she was still on Emergency Placement for violating the cellphone policy.
Regarding claim 5, the supervisor stated on April 17, 2013, she issued Complainant a 7-Day Suspension for Unsatisfactory Safety Performance/Unsatisfactory Work Performance. Specifically, the supervisor stated that she was informed by the Manager and a supervisor that Complainant was observed driving while on the cellphone. The supervisor stated that Complainant was also observed failing to load her mail pouch in the office prior to arriving at the first park point on her route.
The record contains a copy of the April 17, 2013 7-Day Suspension. Therein, the supervisor stated that during the investigative interview, Complainant was provided an opportunity to explain her actions on March 8, 2013. The supervisor stated that Complainant denied talking on her cellphone while driving her postal vehicle.
For instance, the supervisor noted that Complainant stated "that is not correct; my vehicle was not in motion. That is my first time seeing that (cell phone policy). Am I going to get a copy of that? You stated, (in reference to the mail pouch) 'I retrieve my pouch and showed them. [Agency official] didn't give me an opportunity to deliver my mail. She instructed me to come back to the station. I follow those instructions. I came back to the station.'"
The supervisor also indicated that the following comments were directed at Complainant: "Your comments are noted, but unacceptable. You are aware of the Houston District Cell Phone Policy (HR-18), which states, 'Under no circumstances are cell phones or any other personal communication devices to be used while a vehicle is in motion or while in the performance of actual mail delivery...you are also aware that you must load your mail pouch in the office prior to arriving at the first park point on your route. You failed to do this, and your work performance was unsatisfactory as a result. Your position with the Postal Service requires that you work in a safe manner [emphasis in its original.]"
Further, the supervisor stated that Complainant was in violation of Complainant was in violation of Sections 665.13 "Discharge of Duties," 665.15 "Obedience to Orders" and 814.2 "Responsibilities" of the Employee and Labor Relations Manual and Sections 112.24 "Safety" and 272 "Carry-Outs - Packing the Single Satchel" of Handbook M-41.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
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 protected bases -- in this case, national origin and sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her national origin and sex.
Therefore, after a review of the record in its entirety, including consideration of all statements 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 discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
June 14, 2016
__________________
Date
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 The record reflects that in the Agency's Prehearing Conference Report, a "top opportunity" carrier was identified as a carrier has difficulty consistently completing his/her route on time and without assistance.
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