Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionApr 15, 20150120131010 (E.E.O.C. Apr. 15, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120131010 Agency No. 4J-481-0136-11 DECISION On December 31, 2012, Complainant filed an appeal from the Agency’s December 3, 2012 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a City Carrier at Fenkel Station in Detroit, Michigan. On November 15, 2011, she filed an EEO complaint in which she alleged that two Customer Service Supervisors (S1 and S2) and two Customer Service Managers (M1 and M2) had discriminated against her on the bases of sex (female), religion (Non-Denominational), disability, age (51), and in reprisal for prior protected EEO activity over a nine-month period between July 2011 and March 2012. The complaint comprises 24 incidents, which fall into three broad claims: disciplinary action; denial of privileges; and harassment. At the conclusion of the ensuing 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 0120131010 2 Complainant alleged that S1, S2, and M1 subjected her to a number of discriminatory disciplinary actions in July, October, and November of 2011. In July 2011, S1 issued Complainant a letter of warning followed by a 7-day suspension, on which M1 concurred. IR 150, 152. The reason cited in the notices of the two actions was poor work performance. S1 averred that Complainant had been slow in casing mail, which caused her to leave late on her delivery route and return late. IR 165-66, 210-16, 285, 287, 353-57. In October and November 2011, S2 issued Complainant a letter of warning and a 7-day suspension, followed by a 14-day suspension for failure to be regular in attendance, failure to follow instructions, and refusing to obey orders, respectively. IR 182-85, 187, 234-37, 243, 312, 314-16, 388, 394-95, 398, 401-03. As a result of the negotiated grievance procedure, all of these disciplinary actions were reduced to official discussions. IR 228, 234, 238, 243, 266. Complainant also alleged that on various unspecified dates, M1, M2, S1, and S2 denied or withheld employment benefits and privileges from her, including overtime, the opportunity to speak with a union steward, workers’ compensation (CA-7) and other administrative forms, use of the back door, and limited duty, IR 170-72, 189, 194-99, 201, 204. With regard to overtime, M1, S2, and a Letter Carrier, who was called as a witness, testified that Complainant was receiving unauthorized overtime because of her late deliveries and was not needed on her non-scheduled day. IR 274-75, 309-10, 327. As to the union steward situation, S2 testified that he allowed employees to meet with their union representatives, but only after they completed their duties, in order that unnecessary overtime not be incurred. IR 317. Concerning Complainant’s CA-7, M1 stated that Complainant needed to stay within her chain of authority and get the form from her immediate supervisor. IR 278-79. Regarding a disability insurance form which Complainant alleged that S2 refused to complete, S1 stated that the Human Resources Office initially instructed him not to do so, but later changed their position and told him that it was okay to do so. IR 322-23. With respect to S2’s alleged refusal to sign an undelivered mail report, S2 averred that he instructed Complainant to write down only the amount of undelivered mail and no other statements, but that Complainant refused to do so. IR 321. Concerning use of the back door, M1 testified that the door in question was an emergency door that was not to be used for any other purpose. IR 280. As to the alleged denial of a limited duty assignment, S2 averred that on January 20 and 21, 2012, in accordance with medical restrictions that precluded Complainant from delivering mail on those dates, S2 gave Complainant a limited duty assignment which consisted of setting up the route, which was all that was required of her. S2 maintained that Complainant was allowed to work the limited duty assignment that had been approved, but no more. IR 320. Finally, Complainant alleged that on numerous unspecified dates, M1, M2, S1, and S2 harassed her by micromanaging her work performance, monitoring her deliveries, writing her up, threatening and sabotaging her, interacting with her in a belittling and unprofessional manner, and failing to investigate her claims of a hostile environment. IR 150-53, 156-68, 176, 191. In support of her claim, she provided letters from customers along her route who stated that they were happy with Complainant as their carrier and that they had witnessed Complainant being followed and harassed by supervisors. IR 229-33. M1, M2, S1, and S2 all averred that they routinely made observations of their employees, both in the office and on the 0120131010 3 street, that Complainant’s performance was chronically deficient, particularly with regard to casing and mail delivery, and that what Complainant characterized as harassment were the instructions given to her by her supervisors and managers in an effort to help her improve her performance. IR 266-71, 273-74, 276, 288-92, 297-300, 302, 307-09, 311, 318-19. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Consequently, in order prevail on her claims of disparate treatment, Complainant would have to prove, by a preponderance of the evidence, that S1, S2, M1, and M2 were motivated by unlawful considerations of her sex, religion, disability, age, and/or previous EEO activity when they disciplined her and took the other actions at issue in her complaint. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the form of discriminatory statements or past personal treatment, comparative or statistical data, or unequal application of Agency policy. Richardson v. United States Postal Service, EEOC Appeal No. 01912009 (August 29, 1991). It can also take the form of a deviation from standard procedures without explanation or justification. Hovey v. Department of Housing and Urban Development , EEOC Appeal No. 01973965 (August 31, 2000). S1, S2, M1, and M2 articulated legitimate and nondiscriminatory reasons for the disciplinary actions and other actions they had taken vis-à -vis Complainant. Their affidavit testimony was corroborated by contemporaneously prepared memoranda documenting the various incidents. While Complainant asserts that the conduct of S1, S2, M1, and M2 was discriminatory, she has not presented any sworn statements from other witnesses or documents that contradict the explanations provided by those officials or call their veracity into question. It is Complainant’s burden to establish the existence of an unlawful motivation on the part of the responding management officials by a preponderance of the evidence, and more is required to meet that burden than merely expressing one’s belief. We therefore find, as did the Agency that Complainant failed to satisfy her burden of proof as to the existence of discrimination with respect to the disciplinary actions and the various incidents that allegedly involved the withholding of employment benefits and privileges. To prevail on her claim of discriminatory harassment, Complainant would have to prove, again, by a preponderance of the evidence, that because of her sex, religion, disability, age, or previous EEO activity, she was subjected to conduct so severe or pervasive that a reasonable person in Complainant’s position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). Only if Complainant satisfies her burden of proof with respect to both of those elements, hostility and motive, will the question of Agency liability present itself. See Complainant v. Department of Transportation (Federal Aviation Administration) , EEOC Appeal No. 0120131581 (July 18, 2014). 0120131010 4 Every one of the incidents cited by Complainant as an exemplar of harassment was in actuality an example of the efforts by M1, M2, S1, and S2 to track and monitor Complainant’s performance in the hopes of fostering improvement. As such, they involved routine work assignments, instructions, and admonishments which, in general, do not rise to the level of discriminatory harassment. See Bass v. United States Postal Service, EEOC Appeal No. 0120082167 (July 30, 2010). None of these incidents, either singly or collectively, are severe or pervasive enough to rise to the level of abuse on par with a racial slur or to otherwise constitute harassment. Quinones v. Department of Homeland Security , EEOC Appeal No. 01A53109 (March 31, 2006). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (November 9, 1999). 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). 0120131010 5 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Actionâ€). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date April 15, 2015 Copy with citationCopy as parenthetical citation