Willetta L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 23, 2020

2019003067 (E.E.O.C. Jan. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willetta L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019003067 Hearing No. 420-2019-00013X Agency No. 4G-390-0065-18 DECISION On April 15, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 21, 2019 final order concerning an 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 Rural Carrier at the Agency’s Candlestick, Mississippi Post Office. On May 26, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against based on race (African-American), sex (female)2, disability (pregnancy) and/or in reprisal for prior EEO activity when: 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 during an Initial Conference before the EEOC Administrative Judge, Complainant withdrew the basis of sexual orientation (heterosexual). 2019003067 2 1. in January 2018, her manager stared at her while she was performing her duties in the office; 2. on January 17, 2018, she was accused of not taking all the mail to the street; 3. on January 19, 2018, once her parcel cart was full, the remaining parcels for delivery on her route were placed on the workroom floor; 4. on January 19, 2018, her manager took pictures of her while she was working in the office; 5. on February 6, 2018, she was subjected to an investigative interview; 6. on February 23, 2018, after returning from leave taken from February 20-21, 2018, she noticed that her replacement failed to deliver all the mail for the route on the days she was on leave; 7. on or about February 26, 2018, she was spoken to about cell phone usage on the workroom floor;3 8. on February 24, 2018, her manager approached her case and stated, “you need to grow up;” 9. she was not paid for Family Medical Leave Act (“FMLA”)-protected absences on May 22, 2018, and other dates; and 10. on an unspecified date, she was given an investigative interview.4 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On March 8, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s decision. The instant appeal followed. 3 During the investigation of her complaint, Complainant indicated this allegation was in error. Therefore, we will not address it further in this decision. 4 The record reflects that disability (pregnancy) as a basis, and allegations 9-10, were amendments to the original formal complaint. 2019003067 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove her claim of a discriminatory hostile work environment, 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 a protected basis - in this case, her race, sex, disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant worked as a Rural Carrier and the Manager, Customer Service (African-American male) (“the manager”) was Complainant’s supervisor. Complainant alleged that in January 2018, on two occasions, the manager stared at her while she was performing her duties in the office. The manager denied the allegation and Complainant presented no evidence to support her claim or to establish that if it occurred it was based on her protected bases. 2019003067 4 Complainant alleged that on January 17, 2018, she was accused of not taking all the mail to the street. Specifically, Complainant claimed that she was in the office casing or sorting her mail for delivery. She further claimed that she heard from her union steward that the manager was concerned that she had gone out to the street without taking all of her mail. Complainant acknowledged correcting her union steward pointing out that she had not gone to the street yet. Again, Complainant pointed to no evidence that any adverse action was taken as a result of this incident or of any other employee being treated more favorably. Complainant asserted that on January 19, 2018, once her parcel cart was full, the remaining parcels for delivery on her route were placed on the workroom floor. The manager stated that he has no recollection of the January 19, 2018 incident. Again, there is no evidence that Complainant’s protected bases played any role in this incident, even if it occurred as alleged. Complainant claimed that on January 19, 2018, her manager took pictures of her while she was working in the office. The shows that the manager took a picture of Complainant’s mail case after she was out of the office to document that Complainant did not properly case and deliver her mail. Specifically, the manager explained that Complainant did not case all of her mail, and that she did not case the mail in the afternoon “as … previously instructed. That afternoon after everyone had left, I took pictures of the case and emailed it to the [Labor Manager] to show him that [Complainant] did not case and deliver her mail as she states she did.” The record reflects that no further action occurred and there is no evidence that Complainant’s protected bases played a role in this matter. Complainant asserted that on February 5 and 6, 2018, May 1, 2018, June 8, 2018, and July 18, 2018, she was given investigative interviews, a preliminary step to disciplinary action, although no formal discipline resulted. The record reflects that while the manager claimed he does not know what Complainant was referring to, a supervisor acknowledged that on June 8, 2018, she conducted an investigation interview relating to Complainant’s irregular attendance, and on July 18, 2018, she conducted an investigative interview relating to Complainant’s failure to follow instructions. Specifically, the supervisor stated that Complainant “did not adhere to the attendance policy. Carriers are required to be regular in attendance. [Complainant] did not comply with instructions given to her concerning her performance by not taking her parcels to the field and she did not have any valid restrictions on file.” There is no evidence that Complainant’s protected bases played a role in this matter. Complainant alleged that on February 23, 2018, after returning from leave taken from February 20-21, 2018, she noticed that her replacement failed to deliver all the mail for the route on the days she was on leave. The manager stated that while he does not recall the incident, he recalled Complainant filed a grievance regarding a substitute carrier curtailing mail. As a result, the parties settled by agreeing that curtailed mail would be cased in the afternoon. There is no evidence that Complainant’s protected bases played a role in this matter. 2019003067 5 Complainant asserted that on February 24, 2018, her manager approached her case and stated “you need to grow up.” The record further reflects that Complainant requested that her mail be counted.5 In response, the manager and union steward went to Complainant’s case. She admitted that the manager approached, stood outside of her case, and asked her “to verify mail count.” According to the Agency mangement, Complainant admitted that she refused to respond. In response, the manager stated that Complainant needed to “grow up.” The manager explained that on February 4, 2018, when Complainant called him to count some mail, he and a union steward went to see Complainant’s case and “asked her what mail was she wanted counting. [Union steward] and I both were standing behind a hamper outside her case. She turns around and tells me that I am too close and to back up. [Union steward] and I were standing side by side outside of her case behind an orange hamper. I did tell [Complainant] at some point you have got to grow up. I told her whatever mail she has to be counted, bring it to the supervisor’s desk from here on. [Union steward] got the mail from her and brought it to my desk.” Again, there is no evidence that Complainant’s protected bases played a role in this matter. Complainant asserted that she was not paid for FMLA-protected absences on May 22, 2018, and on other unspecified dates. However, the AJ noted that, during the Initial Conference, Complainant acknowledged that her FMLA leave for her pregnancy was approved on March 27, 2018, for scheduled appointments and block leave starting on September 1, 2018. The AJ further noted that the FMLA for Complainant’s disability was approved on June 8, 2018 “for episodic or intermittent leave. There, there appears to be no evidence to support Complainant’s claim that she was denied FMLA leave for discriminatory reasons. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her treatment was the result of her race, sex, disability, or prior EEO activity. A case of discriminatory hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. 5 The rural route count is apparently an annual obligation in which the rural craft union and management evaluate rural routes. The routes are then updated and calibrated for time and wages. The route count is a formal, nationwide process, heavily regulated by the collective bargaining agreement. 2019003067 6 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). 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. 2019003067 7 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 January 23, 2020 Date