Willia M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 6, 20180120161556 (E.E.O.C. Sep. 6, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willia M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120161556 Hearing No. 510-2015-00417X Agency No. 4G320004715 DECISION 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 January 29, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier, PS-00 at the Agency’s Lake Jackson Station facility in Tallahassee, Florida. Her immediate supervisor (S1) was a 204-B Supervisor, EAS-17. Her second-level supervisor (S2) was the Customer Services Manager, EAS-22. Her third-level manager (S3) was the Postmaster, EAS-24. On December 19, 2014, Complainant initiated counseling and filed a grievance with the Agency regarding the claims below. On April 7, 2015, Complainant filed an EEO complaint alleging that 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. 0120161556 2 the Agency discriminated against her on the bases of race (Caucasian), national origin (Egyptian), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On October 14, 2014, she was not properly paid; 2. On or around December 4, 2014, she was not given relief and yelled at in front of coworkers; 3. On dates to be specified, she was not paid for mileage; 4. On dates to be specified, she was not permitted to review mileage and hours before PS Form 1314 and 1314A were sent to Eagan Accounting Center; 5. On December 9, 2014, she was denied use of a long life vehicle (LLV) and sent home; 6. On December 14, 2014, she was sent home after she reported to work on her day off as instructed; and 7. On or around December 18, 2014, and continuing until a date to be specified, management tried to make her work outside her medical restrictions, sent threatening emails to her, and invalidated her badge and removed her information as if she did not work for the Postal Service. Complainant named S1, S2, and S3 as the discriminating management officials in the instant complaint. She stated she filed prior EEO complaints on January 29, 2010 and March 9, 2010, which were combined under case number is #4H-320-033-10; on October 1, 2010 under #4H-320- 0008-11; on June 20, 2011, as #4H-320-0060-11; on September 27, 2011, as #4H-320-0091-11, which was combined with her EEO activity filed on October 7, 2012 under case number 4G-320- 0219-12. She named S1 as the management official who discriminated against and harassed her based on race, national origin, disability, and her prior EEO activity in cases #4H-320-0033-10 and #4H-320-0008-11. All three management officials named in the instant complaint expressed awareness of her prior protected activity. 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 (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, 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. Specifically, with respect to Claim 1, Complainant alleged that on October 14, 2014, she was not properly paid because her nonscheduled day is Monday. She asserted that since Columbus Day fell on her day off, for which she correctly received holiday pay, she was supposed to receive Tuesday off. Instead, because management was short of substitutes, she was asked to work on Tuesday and therefore should have been paid 150% or time and half. 0120161556 3 The Agency found that Claim 1 was an untimely discrete act since the alleged incident did not occur within 45 days of Complainant’s contact with an EEO Counselor. The Agency also found that the incident did not support her claims of harassment or reprisal. According to S2, although Complainant’s nonscheduled day was Monday which was a holiday, Complainant’s holiday reverted to the preceding work day which was Saturday. Consequently, S2 asserted that Complainant was not entitled to 150% pay for working on Tuesday. S2 added that when she explained this during Complainant’s grievance, the union steward agreed with S2. The Agency found that Complainant offered no documentary or testimonial evidence that refuted S2’s calculations. With respect to Claim 2, Complainant alleged that around December 4, 2014, S1 refused to give her relief and instead yelled at her in front of coworkers when he told her to cleanup her route and correct another coworker's mistakes. Complainant explained that while she was out on sick leave, a coworker (CW1) served as her replacement on her route and left accumulated mail of three days. She stated that CW1 told her he fell behind, had too much mail, and could not deliver it all. Complainant complained to S3 who was visiting the station and she said he agreed she should not be responsible for the mail left behind when she was off work. Complainant stated that S3 said he would talk to S1, but when she inquired, S1 told her that S3 did not say anything to him about the matter. Complainant contended that since she had to work longer hours without a break, S1 should have given her more than two hours of relief and that she should have received additional pay or extra relief time in the future. She maintains that her race and national origin were factors because she is the only employee who is mistreated. She stated that an African American, Rural Carrier Assistant (RCA) left one half tower of flats, did not finish casing mail, and brought a few packages of undelivered mail back to the station but was paid for her entire route. She also asserted that two White, American Rural Carriers were provided relief and not yelled at by S1. S1 denied having yelled at Complainant or being aware that Complainant sought additional relief. However, another Rural Carrier, PS-02 (CW2) stated that when Complainant asked for relief, S1 refused, was loud and rude towards her, and made Complainant clean up the mail on her route which caused her to be in the office until mid-afternoon. S1 also stated that he was not aware that the African American RCA had left unfinished work and explained that everyone who finishes their route is paid. The Agency found that Complainant did not present any evidence establishing that discrimination or retaliation for protected EEO activity motivated S1’s alleged actions. Regarding Claim 3, Complainant alleged that S1 failed to pay for all of her mileage. S1 stated that although he is Complainant’s supervisor, she never complained to him about not being paid mileage. S2 stated that she became aware Complainant was not paid for mileage when she made two trips and the second trip was for 10 miles on November 28, 2014. S2 asserted Complainant was paid for the additional 10 miles on the next pay period after a grievance was filed and the mistake was ultimately corrected. S2 admitted that she should have immediately completed the documentation to correct the error rather than having S1 enter the information the following pay period, but she maintained that this error was not intentional. The Agency found that Complainant did not submit any evidence establishing that management’s actions were a pretext for discrimination or retaliation. 0120161556 4 Concerning Claim 4, Complainant alleged that the management officials that did not permit her to review her mileage and hours before PS Forms 1314 and 1314A were sent to the Eagan Accounting Center. According to Complainant, there are two settlement agreements requiring management officials to provide her with both PS Forms 1314 and 1314A without her asking for the forms. She claimed that management breached these contracts. She claimed that her race, national origin, and prior complaints were factors because she is the only employee who is mistreated. S1 and S2 stated that the forms are placed in the employees’ mailboxes, and Complainant never asked to review these forms. S1 added that Complainant does not get a PS Form 1314A. The Agency found that Complainant did not submit any evidence to substantiate her claim that she asked to review her forms, that they were not available to her, or that management’s alleged actions were motivated by discriminatory or retaliatory animus. With respect to Claim 5, Complainant alleged that, on December 9, 2014, S1 denied her use of a Long Life Vehicle (LLV) while her personal vehicle was in repair and sent her home. Complainant explained that she started working at 7:45 am and her mechanic had to buy an extra part, resulting in her car not being ready before 2 pm. She said she informed S1 of the delay, and asked to use a LLV. Complainant stated that S1 denied her request and instructed her to go home. Complainant argues that her race and national origin were factors because five carriers (C1-5) under S1’s supervision were given LLVs and not sent home. S1 counters that he did not have a LLV available at the time of Complainant’s request and informed Complainant that her postal contract states if she does not have a vehicle, she should rent one. He explained that generally he does not provide LLVs if they are not requested for the route because if he provides a LLV and the employee gets involved in an accident, he is responsible. S1 further stated that he did not send Complainant home but rather Complainant refused to rent a car and chose to go home. S1 also explained that C1 was given a LLV because her route requires it daily; C2 never uses a LLV; C3 and C4 drive their own personal vehicles; and C5 is a Rural Area Carrier Associate who usually is provided an LLV because Associates are part time. S1 also noted that he provided C5 with a LLV when she returned from delivering parcels because he asked her to complete Complainant’s route. The Agency found that management’s reasons were legitimate and that Complainant offered no evidence indicating that discrimination was a factor. As for Claim 6, Complainant alleged that she was one of four carriers who volunteered to work but, unlike her, they were informed in advance that the job had been cancelled. According to S2, rural carriers were asked to volunteer to work on December 14, 2014, which was a Sunday. S2 stated that during the week the District office said that they could not work the volunteers. S2 said she asked the supervisors to inform the volunteers that they would not be working on Sunday. She noted that there were several announcements made and stand-up talks given, informing all employees at the same time not to report to work on Sunday. The Customer Services Supervisor confirmed that he instructed Complainant to go home when she reported to work. The Agency found that Complainant did not refute that announcements were made about the cancellation and concluded that management’s decision to use RCAs instead is a contract dispute, and does not support a claim of discrimination. 0120161556 5 Concerning Claim 7, Complainant alleged that on or around December 16, 2014, and thereafter, management tried to make her work outside her medical restrictions, sent threatening emails to her, and invalidated her badge and removed her information as if she had not worked for the Agency. Specifically, Complainant said that she was injured on the job, and that S3 sent threatening e-mails asking her to respond to a modified job offer of carrying and delivering mail with “no kneeling†before she had an opportunity to meet with a specialist. She said the Agency took steps toward terminating her when she returned to work on March 26, 2015, and learned her badge and scanner had been deactivated. She said when she addressed these issues with the Customer Service Supervisor, he responded, "You should not be here." Complainant also claimed that on December 16, 2014, she received her first CA-17 from Patient First with restrictions but S2 told her there was no work for her within her restrictions and S3 forced her to work her normal job. Complainant further stated that on December 29, 2014, she provided documentation that she was on medical restrictions and that her doctor disapproved the job offer. S1 stated that he was not aware that Complainant had any medical restrictions and confirmed that she worked her regular job. S2 stated that Complainant was not given assignments outside of her restrictions. She said that Complainant submitted a CA-17 on December 16, 2014, which indicated that Complainant could not do any kneeling but could perform all the essential functions of casing and carrying her route. The record also has an email from S2 to Complainant dated December 29, 2014, which attached a modified job assignment for Complainant based on the latest CA-17. Both managers stated that Complainant had not been removed from the system. Further, a PS Form 50 which Complainant alleged demonstrated that she was terminated merely indicated that the District was terminating Complainant’s special salary since she had returned to work. 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€). The Commission finds that Complainant failed to disprove the reasons articulated by the Agency for its actions and did not demonstrate that management harbored any discriminatory or retaliatory animus towards Complainant. Regarding Claim 4, Complainant has not produced an EEO settlement agreement or claimed that an EEO settlement agreement has been breached. If Complainant is claiming breach of an EEO settlement agreement, then she should the EEO Director in writing of the alleged breach pursuant to 29 C.F.R. §1614.504. We offer no opinion whether such contact would be timely. As for disparate treatment, we find no indication that the actions complained of in Claim 4 were motivated by discrimination. Regarding Claim 7, we find that Complainant has not shown that she worked beyond her medical restrictions. 0120161556 6 The email in question in Claim 7 was not threatening; it simply directed Complainant to respond to the offer of a modified job duty. Furthermore, given our findings that Complainant failed to show that any action was motivated by discrimination, we find that Complainant failed to prove she was subjected to a discriminatory hostile work environment. CONCLUSION The Commission AFFIRMS the Agency’s finding of no discrimination. 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). 0120161556 7 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 6, 2018 Date Copy with citationCopy as parenthetical citation