0120152652
03-04-2016
Stephany A.,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
Stephany A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120152652
Agency No. 1G-772-0029-14
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 24, 2015 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency's Central Carrier Station in New Orleans, Louisiana.
On July 9, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (Caucasian), sex (female), and in reprisal for prior EEO activity when:
1. beginning on an unspecified date, she was continuously moved or displaced from her assignment;
2. on March 8, 2014, she was charged Absence Without Leave (AWOL);
3. her March 24, 2014 request for leave was denied;
4. on or about September 17, 2014, she received a Fourteen-Day Suspension; and
5. on November 17-19, 2014, she was retrained on her city carrier duties.2
After the investigation of the claims, Complainant was provided with a copy of the report of the investigation and with a 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 did not respond.
On June 24, 2015, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex and reprisal discrimination. The Agency further found that assuming Complainant established a prima facie case of race, sex and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to 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 race, sex and retaliation. 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, Distribution Operations (supervisor) stated that in regard to claim 1, Complainant was not continuously moved or displaced from her assignment and "was allowed to perform her duties." The supervisor also stated that two named Mail Handlers performed similar duties to that of Complainant and were not treated differently than Complainant.
Regarding claim 2, the record reflects that Complainant was charged with 8 hours of unscheduled AWOL for March 8, 2014 because she did not follow the Agency's proper procedures. The supervisor stated that Complainant's race, sex and prior protected activity were not factors in Agency management's decision to charge her with AWOL.
Regarding claim 3, Complainant alleged that on March 24, 2014, she requested 16 hours of annual leave for April 11-13, 2014 but was never provided a denial slip for the leave requested. Complainant further stated that when she returned to work and asked for a copy of the leave slip, it showed that her request was denied due to "business conditions" by the supervisor.
Regarding claim 4, another Supervisor, Customer Services (Supervisor 2) stated that on September 9, 2014, Complainant was issued a Fourteen Day Suspension "because she failed to notify the Postal Service of her need for reasonable accommodations when she was re-assigned to the Louisiana District." The record contains a copy of the September 9, 2014 Fourteen Day Suspension. Therein, the Supervisor 2 stated that during the August 19, 2014 investigative interview, she asked Complainant when she accepted the city carrier job in New Orleans and how long she had an injury with the Agency, Complainant refused to answer her questions. The Supervisor 2 stated that when she asked Complainant at the time she signed the reassignment letter if she remember reading a section concerning the requirement to request reasonable accommodation to perform her duties, Complainant's union representative told Complainant not to answer her question. The supervisor stated that she then asked Complainant why she did not request accommodation at that time, and Complainant's representative again advised Complainant not to answer.
The Supervisor 2 found Complainant's explanation to her questions unacceptable and does not excuse or mitigate her unacceptable conduct. The Supervisor 2 stated that Complainant's failure to notify the Louisiana District of her need for reasonable accommodation during her reassignment request "has impeded the overall efficiency and operation at Central Carrier Station. As a letter carrier, you are required to deliver all mail on your assigned route on a daily basis...your actions were counter-productive and impede our efforts to maintain reliable and efficient service to our customers. You must refrain from this type of conduct."
Further, the Supervisor 2 stated that Complainant was in violation of Section 665 of the USPS Standards of Conduct, and Sections 665.13 "Discharge of Duties and 665.16 "Behavior and Personal Habits" of the Employee and Labor Relations Manual. Moreover, the Supervisor 2 stated that she did not discriminate against Complainant based on her race, sex and prior protected activity.
The Manager, Customer Services (Manager) stated that she was the concurring official regarding Complainant's Fourteen Day Suspension because "she failed to request or state that she needed reasonable accommodation before accepting a reassignment to the Louisiana District."
Regarding claim 5, the Manager stated that in November 2014, Complainant was retrained for her carrier duties because "she had difficulty measuring mail, difficulty splitting mail in minute/hour sections. [Complainant] used improper lifting techniques, cannot properly file out a 3996." The Manager further stated that Complainant did not suffer any consequences as a result of being retrained. Moreover, the Manager stated that Complainant's race, sex, and prior protected activity were not factors in her determination to retrain her.
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, race, sex and retaliation. 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 race, sex and prior protected activity.
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 (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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
March 4, 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 reprisal as a basis and claims 3-5 were later amended to the instant formal complaint.
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