Britany N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 29, 20190120182814 (E.E.O.C. Oct. 29, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Britany N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120182814 Agency No. 4K-230-0222-17 DECISION On August 14, 2018, 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 July 18, 2018 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Customer Services Supervisor, EAS-17, at the Post Office in Portsmouth, Virginia. On January 2, 2018 (and later amended), Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (residual effects of ankle injury, anxiety, and depression), age (53), and reprisal (prior protected EEO activity) when: 1. On 33 occasions during August and September 2017, the Postmaster (PM1) threatened Complainant and spoke to her in a demeaning manner; 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. 0120182814 2 2. On August 30, 2017, PM1 denied two of Complainant’s written requests for annual leave; 3. In September and October 2017, PM1 denied Complainant’s requests for sick leave and charged her annual leave and leave without pay (LWOP) for the time she had taken off from work; 4. On September 3, 2017, PM1 instructed Complainant to move from her office; 5. On September 7, 2017, PM1 had Complainant placed on the “deems desirable” list; 6. On September 12, 2017, PM1 instructed Complainant to leave the premises after she had reported for duty; 7. On September 12, 2017, PM1 revoked Complainant’s e-access and e-fax privileges; 8. On September 13, 2017. PM1 instructed Complainant’s clerks not to listen to her and Complainant’s carriers not to sign any documents Complainant might ask them to sign; 9. On September 18, 2017, PM1 instructed another Customer Services Supervisor (CSS1) to issue Complainant a letter of warning if she failed to follow instructions; 10. On October 2, 2017, PM1 had Complainant’s belongings removed from her office; 11. On November 9, 2017, Complainant became aware that her accountables were missing; and 12. On November 14, 2017, and other unspecified subsequent dates, Complainant had received telephone calls concerning operations that caused her to experience anxiety attacks and hypertension. Incident (1): Complainant averred that on 33 occasions between August and November 2017, PM1 treated her unprofessionally in the presence of her subordinates. She stated that on numerous occasions, PM1 yelled at her, often disparaging not only her character but also that of the employees who worked under her. In particular, Complainant averred that PM1 “went off” on her after she pointed out that PM1 had been ignoring her, that PM1 accused her of taking the key to her office and ordering Complainant not to authorize penalty overtime for any of her employees. IR 140-49. PM1 denied that any of the incident had occurred the way Complainant had described them. She stated that she never “went off” on Complainant or anyone else, that she had asked all employees who had keys to her office to return those keys to her, not just Complainant, and that penalty overtime had to be authorized by the Post Office Operations Manager (POOM) before she could pass that authorization on down to the line supervisors. PM1 averred that after a while, Complainant became “very disrespectful and insubordinate.” 0120182814 3 IR 349-53. The POOM averred that he did not have knowledge of the incidents that allegedly occurred between Complainant and PM1. IR 384-88. Complainant’s previous Postmaster (PM2), who PM1 replaced on August 16, 2017, averred that he had spoken with Complainant and had advised her to follow her supervisor’s instructions, and that if she had any issues, she should contact the POOM. IR 417. Incident (2): Complainant averred that on August 30, 2017, Complainant submitted two written requests for annual leave, both of which PM1 denied. She averred that PM1 had told her both verbally and via email that she would not cover for Complainant on either date. Complainant acknowledged, however, that on the leave slips, PM1 noted no coverage for Postmaster duties as the reason for denying the leave requests. IR 150. PM1 averred that if she were to give Complainant the requested days off, she herself would have had to work on those days. She also averred that she had given Complainant the day off the week before. IR 353. PM2 averred that Complainant had asked him to approve her leave requests before his departure but that he refused to do so for dates on which he was not going to be the Postmaster. IR 417. Incident (3): Complainant claimed that between September 5 and October 13, 2017, PM1 changed Complainant’s sick leave requests and charged her annual leave and LWOP instead. She averred that on September 6, 8, 9, 13, 27-30, 2017, and October 1-7, and 11-13, 2017 annual leave was entered in lieu of sick leave. She also averred that on September 7, 20, 21, 23, 2017, and October 9, 2017, LWOP was entered in lieu of sick leave. In addition, she averred that she had requested sick leave on each of these dates. IR 154, 261-64, 303-08. PM1 responded that Complainant had not been at work throughout much of September 2017, and that she had no contact with Complainant at that time. PM1 also averred that Complainant had threatened to file an EEO complaint if the office kept calling her. As to the alleged changes made to Complainant’s leave requests, PM1 averred that Complainant was not scheduled to work on September 5, 2017 and was charged annual leave as requested. On September 4, 2017 Complainant called in and requested 16 hours of sick leave for that date and September 6, 2017. Complainant did not call in or report for work on September 7, 2017 and was charged LWOP. On September 8 and 9, 2017, Complainant was charged annual leave. IR 355. An email dated November 9, 2017 indicates that Complainant’s request for leave under the Family and Medical Leave Act (FMLA) had been approved through November 20, 2017, and that the supervisor had been notified to re-enter leave from September 27 through November 1, 2017, and to continue to enter FMLA absences on her case number. IR 309. Incident (4): Complainant averred that on September 3, 2017, PM1 had instructed Complainant to move out of her office. She stated that PM1 had her office moved and had informed her via email that the clerk supervisor’s office was located on the workroom floor close to the area in which the clerks were stationed. IR 157. PM1 averred that Complainant had been occupying an administrative office when PM1 arrived, and that Complainant had agreed with her that the clerk supervisor’s office should be on the workroom floor. IR 357. 0120182814 4 Incident (5): Complainant averred that on September 7, 2017, PM1 placed her on the “Deems Desired” list. According to Complainant, the Deems Desirable list is a status that management places upon an employee whose attendance is not supported by adequate documentation or is otherwise questionable. IR 160. PM1 averred that Complainant had become irregular in her attendance along with several other employees, and that she had not returned to work since September 2017. IR 359. Incident (6): Complainant averred that after she reported for duty on September 12, 2017, PM1 instructed her to leave the premises. Complainant acknowledged that PM1 had informed her that she had prepared a new schedule and consequently, she was not needed on that day. IR 163. PM1 averred that Complainant had not been at work during the week prior to September 12, 2017, the date that she had changed the schedule. PM1 maintained that Complainant’s attendance was irregular and that September 12, 2017 was now her day off. IR 361. Incident (7): Complainant averred that on September 12, 2017, PM1 revoked her e-access and e- fax privileges, effectively preventing her from receiving any Agency emails or accessing any Agency programs. She opined that PM1 revoked her access in order to prevent her from providing documentation that she needed to substantiate her claims. IR 167. An email from the e-access administrator to Complainant dated September 12, 2017 indicates that PM1 had revoked Complainant’s e-access privileges. The email also includes PM1’s comment that, “employee has no need for these apps.” IR 275. Emails dated November 16, 2017 and December 29, 2017 documenting PM1’s action included a comment from PM1 that “employee has not been at work since August.” IR 320-321. A third email, dated January 8, 2018, included PM1’s comment that Complainant’s e-access privileges had been revoked during a periodic managerial review by her. IR 322. In her affidavit, PM1 stated that she had to review access to all employees, and that Complainant was accessing other Agency facilities while she was on sick leave and using Agency computers. PM1 reiterated that Complainant never returned to work. IR 363. Incident (8): Complainant alleged that on September 13, 2017, and other unspecified dates, PM1 instructed the clerks working under her not to listen to her and the carriers not to sign any documents she might ask them to sign. She stated that PM1 told her that she was no longer their supervisor. IR 170. PM1 responded that Complainant was not at work on September 13, 2017, and that five days prior to that date, she informed the clerks that they should report to the two other Customer Service Supervisors. IR 274, 365. Incident (9): Complainant averred that on September 18, 2017, PM1 instructed CSS1, who was serving as an acting manager, to issue her a letter of warning if she failed to follow instructions. IR 173. Complainant further averred that PM1 and CSS1 were trying to bully her into providing unnecessary discipline to one of her subordinates but admitted that she was never issued a letter of warning. IR 173. PM1 averred that Complainant was failing to follow instructions and that she instructed CSS1 to issue the letter of warning if Complainant did not follow her directions. IR 361. 0120182814 5 Incident (10): Complainant claimed that on October 7, 2017, her office had been cleaned out. She stated that she was not present but was told by her clerks and carriers that they had seen someone from maintenance removing her personal items from the office and placing them on a utility cart, on the desk in her new work area, and in an area designated for trash. IR 176. PM1 averred that the office Complainant was occupying was an administrative office and not the supervisor’s office to which she was assigned. She also stated that Complainant had agreed to move her belongings. IR 370. Incident (11): Complainant claimed that on November 9, 2017, she became aware that her accountables, including stamp stocks; money orders; cash; seals; and a collection box key, were missing. IR 179. PM1 averred that she was asked by the POOM to complete the quarterly retail count, and that when she opened the safe, there were no accountables present. She also averred that she was informed that another manager and a custodian had opened the safe and that the accountables were given to a clerk. PM1 emphasized that no action was taken against Complainant. IR 372, 418. Incident (12): Complainant averred that on November 14, 2017, and unspecified subsequent dates, she received telephone calls concerning operations that had caused her to suffer anxiety attacks and hypertension. She identified PM1 and the POOM as being responsible for those telephone calls. According to Complainant, the POOM’s reason for contacting her was that he wanted her and another manager to violate customary protocol by conducting another count, which she had already done on November 9, 2017. IR 191. PM1 denied that she ever called Complainant after Complainant stopped reporting from work and stated that she was unaware of any of Complainant’s fellow supervisors calling her at home. IR 377. PM1 did, however acknowledge that she did call Complainant concerning the quarterly count, and that even though the contents were missing, she went back and completed the count on November 28, 2018. IR 419. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final agency decision without a hearing, and in accordance with Complainant’s request, the Agency issued its 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 or reprisal as alleged. The instant appeal followed. 0120182814 6 ANALYSIS AND FINDINGS Standard of Review 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 law”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since PM1 articulated legitimate and nondiscriminatory reasons for her actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to the multiple episodes comprising incident (1), PM1 stated that Complainant had become insubordinate, refused to follow her instructions and fueled conflicts between them. PM1 denied “going off” on Complainant or otherwise acting in an unprofessional manner toward Complainant. Regarding incidents (2) and (3), PM1 stated that Complainant’s August 30, 2017 leave requests were denied because there was no coverage. Further, Complainant was charged with sick and annual leave as requested on the dates in question but was charged LWOP when she did not call in or report to work. Complainant was subsequently granted FMLA-protected leave and her leave status was retroactively corrected in November 2017 after she provided the required medical documentation. Concerning incidents (4) and (10), PM1 stated that Complainant had been occupying an office designated for administrative personnel and that she needed to be in one of the supervisors’ offices on the workroom floor in order to be closer to the people she was supervising. Regarding incidents (5), (7), and (8), PM1 stated that she placed Complainant on the deems desirable list, revoked Complainant’s electronic access privileges, and instructed Complainant’s clerks and carriers to take direction from other supervisors because her attendance was becoming irregular to the point where she had stopped coming to work altogether in late August or early September 2017. With respect to incident (6), PM1 reported that she sent Complainant home on September 12, 2017 because the work schedule had changed, and that day was no longer Complainant’s assigned day. 0120182814 7 With regard to incident (9), PM1 stated that Complainant was not following her orders, but noted that no letter of warning was ever issued to her. As for incident (11), Complainant was never held responsible for the disappearance of the accountables. Regarding incident (12), the calls that were made to Complainant, to the extent they were made at all, were pertinent to critical operations that were going on at the time. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). The record includes a number of unsworn statements, including handwritten letters and emails attesting to the harshness of PM1’s management style. In an undated letter, an employee stated that PM2, the previous Postmaster had a laid back style and that PM1, his replacement, “ruled with an iron fist.” IR 324. In a letter dated December 26, 2017, CSS1 wrote that Complainant had been out of work since September and that he had seen Complainant “disrespected, belittled, and harassed” during the time frame before she went out of work, and that the bullying and intimidation had taken a toll on Complainant. IR 288, 301. In a letter dated September 11, 2017, a postal clerk reported that she saw PM1 constantly following Complainant around, yelling and screaming at her. IR 272. In a letter dated September 12, 2017, another clerk reported that she saw PM1 try to force Complainant out of the building by threatening to call the police and have Complainant removed if she did not leave voluntarily. This clerk further stated that PM1 was extremely rude not only to the newer clerks but to their supervisor, Complainant, and that PM1 was always trying to embarrass employees on the workroom floor. IR 273. These statements demonstrate that PM1 had an abrasive and harsh managerial style toward Complainant and other employees. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). When asked by the EEO investigator why she believed that PM1 had discriminated against her on the bases of race, sex, age, disability, and prior EEO activity, Complainant stated that she was African-American, female, 53 years old, and had disabilities. IR 150-51, 154-55, 157, 160-61, 165, 167-68, 170, 174, 176-77, 180, 192. 0120182814 8 Beyond these generalized and conclusory assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents attesting to PM1 making any references to or otherwise basing her actions upon unlawful considerations of her race, sex, age, disability, or prior EEO activity. The record is clear that PM1 had a harsh management style that resulted in interpersonal conflicts with some of her subordinates, including Complainant. However, there is no evidence reflecting the existence of discriminatory or retaliatory animus toward Complainant based on her protected classes. Harassment To the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). While there is no question that Complainant had been repeatedly subjected to intimidation and bullying by PM1 before she left work, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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). 0120182814 9 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. 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. 0120182814 10 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 October 29, 2019 Date Copy with citationCopy as parenthetical citation