0120142673
07-20-2016
Claudia A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Claudia A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142673
Hearing No. 520-2012-00142X
Agency No. 4C-140-0039-11
DECISION
The Commission accepts Complainant's appeal from the Agency's July 2, 2014 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission's review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Niagara Square Station in Buffalo, New York. On March 7, 2011, Complainant's supervisor (S1) held a pre-disciplinary interview with Complainant after it was brought to his attention that Complainant had left the driver's side door to a long life vehicle open after using it. Complainant disagreed that she left the door open and speculated that someone else opened the door to the vehicle. In addition, on April 4, 2011, S1 charged Complainant with missing a delivery confirmation scan. S1 indicated that Complainant admitted to missing the delivery confirmation scan. On April 9, 2011, S1 issued Complainant a 14-Day No Time-Off Suspension for failure to discharge properly her duties. In issuing the suspension, S1 considered Complainant's prior disciplinary record. The suspension was later reduced to a Seven-Day Suspension.
On May 3, 2011, S1 held a pre-disciplinary interview with Complainant regarding missing scans. S1 accused Complainant of missing a delivery confirmation scan for a law firm on April 30, 2011. S1 informed Complainant that he discovered the missed scan after running a report. Further, S1 informed Complainant that he discovered the mail piece in the customer's caller bucket where she had placed it without scanning it. Complainant disagreed and blamed the scanner despite using the scanner to properly scan several other mail pieces. In addition, on May 5, 2011, the Customer Services Manager (M1) walked with Complainant for two hours and reported that Complainant mis-delivered mail twice and failed to combine light loops to eliminate relay pick-ups on three occasions. Following the pre-disciplinary interview, S1 issued Complainant a 14-Day Suspension on May 24, 2011, for failure to properly discharge her duties.
On May 6, 2011, M1 informed Complainant that she could not return to the office for lunch. M1 reasoned that the office was not in Complainant's line of travel, and the time it took to travel to the office and back to her route added at least 15 minutes onto her lunch time. On May 9, 2011, Complainant claims that a Customer Services Supervisor (S2) asked her why she could not complete her route as fast as the regular carrier on the route. Additionally, Complainant claims that M1 followed her on her route on May 12, 2011, without giving her a reason.
On May 19, 2011, M1 spoke to Complainant about her attendance. M1 stated that Complainant had reached the call-in threshold and he discussed with her the need for her to be regular in attendance.
On June 10, 2011, Complainant claims that M1 yelled at her in public about double parking her long-life vehicle. M1 informed Complainant that her vehicle was obstructing traffic.
On June 22, 2011, S1 joined Complainant for an observation on her route after he delivered some late mail to carriers. S1 asked Complainant why she was not delivering mail to Starbucks, and she informed him that the store was closed for remodeling. S1 left to do other carrier observations after about 10 stops.
On September 23, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and age (59) as evidenced by multiple incidents including, inter alia, she was issued a 14-Day Suspension dated April 9, 2011, for Failure to Properly Discharge her Duties (which was reduced to a 7-Day Suspension); she was given pre-disciplinary interviews; her manager (M1) walked with her on her route for two hours; M1 told her she could not return to the office for lunch; she was asked why she could not complete the route as fast as the regular carrier; M1 spoke to her about her attendance; she was issued a second 14-Day Suspension for Failure to Properly Discharge her Duties; M1 yelled at her in public for double-parking; and management followed her on her route on several occasions.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on June 23, 2014.
In his decision, the AJ determined that that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to the first suspension, S1 cited to Complainant's failure to close the driver's side door to a long-life vehicle on February 24, 2011, and Complainant's failure to scan a delivery confirmation label correctly on April 4, 2011, as the main reasons for the suspension. The suspension was later reduced to a Seven-Day No Time-Off Suspension. Similarly, Complainant was issued a 14-Day No Time-Off Suspension on May 24, 2011, for failing to scan a parcel of mail as "delivered" and she failed to scan two managed service points on her route. Additionally, M1 observed Complainant twice fail to deliver to the proper address and fail to combine light loops to eliminate relay pick-ups on three occasions. Complainant was given pre-disciplinary interviews prior to both suspensions to give Complainant the opportunity to explain her shortcomings.
With respect to her claims that management officials followed her or observed her on her route on several occasions, the Agency explained that Complainant was considered an "accident repeater" and management observes or walked with Complainant to ensure she was conducting her duties safely. In addition, Complainant was inefficient in completing her route in the designated eight-hour period. Likewise, S2 questioned Complainant about how long it took her to complete her route because Complainant was told that the route assigned did not warrant eight hours to complete, and that her casing efficiency should have been improved up to that point in time.
Regarding her lunch break, M1 told Complainant she could not return to the office for her lunch because it was not in her line of travel and it would add another 15 minutes on to her lunch break. As to M1's discussion about her attendance, Agency policy is that employees, who are absent more than three times in a 90-day period, are spoken to about attendance.
The AJ concluded that Complainant failed to show that the Agency's reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ's decision. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the Agency because the Agency's motion was untimely and improperly served. In addition, Complainant argues that the AJ failed to communicate with the parties regarding the untimely motion or any aspect of the case for over a year. Accordingly, Complainant requests that the Commission reverse the final order.
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.
At the outset, the Commission finds that Complainant failed to show the AJ abused his discretion by accepting and granting the Agency's untimely motion for summary judgment. The AJ exercised his discretion to accept the Agency's motion after the deadline, and correspondingly granted Complainant additional time in which to file her reply to the Agency's Motion. Despite Complainant's arguments to the contrary, the Commission finds that Complainant was afforded a sufficient opportunity to respond. Additionally, the Commission finds there is no evidence that Complainant was prejudiced by the AJ's delay. The Commission notes that AJs have broad discretion in the conduct of hearings and related proceedings. See 29 C.F.R. � 109; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7. Upon review of the record, the Commission finds no evidence that the AJ abused his discretion in the manner in which he managed and adjudicated this case.
Hostile Work Environment
To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Therefore, 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 sex or age. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. Here, Complainant alleged that based on her protected classes, she was discriminated against and subjected to a hostile work environment as evidenced by multiple incidents. Construing the evidence in the light most favorable to Complainant, the Commission agrees with the AJ that Complainant has not shown she was subjected to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. 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).
Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. For example, Complainant was given a pre-disciplinary interview and subsequently suspended for 14 days on April 7, 2011, after S1 discovered that she missed a delivery confirmation scan and failed to secure her long-life vehicle. ROI, at 169, 215. The suspension was later reduced to a Seven-Day No Time-Off Suspension. Id. at 216. Complainant was given another pre-disciplinary interview and a second 14-Day No Time-Off Suspension on May 24, 2011, after S1 discovered that Complainant failed to scan a delivery confirmation, failed to scan two managed service points on her route, and twice mis-delivered mail. Id. at 183, 211.
With respect to being followed or observed on her route, management explained that they did so to address Complainant's inefficiency and performance deficiencies. ROI, at 174, 227. M1 informed Complainant that she could not return to the office to eat lunch because it was not in her line of travel and would add at least 15 minutes on to her lunch break. Id. at 229. M1 spoke to Complainant about her attendance because she had reached the threshold for call-in absences and M1 simply addressed the need for her to be regular in attendance. Id. at 234. Finally, M1 denies yelling at Complainant about her vehicle; rather, she asked Complainant why she parked her long-life vehicle in a manner obstructing traffic. Id. at 237.
The Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation was a pretext for discrimination. As a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination or a hostile work environment as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge's issuance of a summary judgment was appropriate and a preponderance of the record evidence 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
7/20/2016
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.
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