0120133205
05-21-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120133205
Hearing No. 420-2013-00062X
Agency No. 4G-390-0028-12
DECISION
Complainant filed an appeal from the Agency's August 8, 2013 final order concerning her equal employment opportunity (EEO) complaint. She alleged employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a PSE Sales Service and Distribution Associate at the Agency's Ocean Springs Post Office facility in Ocean Springs, Mississippi.
On June 9, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to a hostile work environment based on her sex (female), religion (Mormon (Church of Latter Day Saints)), age (57), and reprisal for prior protected EEO activity when:
1. since October 22, 2011, she attempted multiple times to work with management to obtain correct pay for October and November of 2011;
2. on February 24, 2012, she was told to clock out and leave her shift by an acting supervisor;
3. on March 7, 2012, she was issued a Notice of Termination, effective March 9, 2012; and
4. on unspecified dates, she was yelled at, told that she would be fired, and subjected to inappropriate comments.
Complainant named two individuals as the responsible management officials: 1) the Postmaster (male, younger, Protestant), and 2) the Acting 204-B supervisor, who was Complainant's immediate supervisor (male, younger, non-denominational).
The record shows that Complainant is a member of the Church of Jesus Christ of Latter Day Saints. She had prior EEO activity in 2002 and made initial EEO contact for the subject complaint on February 24, 2012. Her immediate supervisor denies that he had knowledge of her prior EEO activity. The record shows that Complainant circulated a petition alleging a hostile work environment. Management learned about the petition two days prior to the date of Complainant's termination.
Claim 1 - Incorrect pay
Complainant entered on duty as a PSE Clerk in Ocean Springs, Mississippi on October 22, 2011. There was a delay in the processing of Complainant's PS Form 50, Notification of Personnel Action, from the Human Resources Shared Services Center, until November 30, 2011. After the first two weeks, Complainant notified management that she had not been paid. The Postmaster gave Complainant a cash advance of $762.00 on November 10, 2011, for the pay period 2012-23. The amount was calculated as 65% of her pay.
After another next two weeks, Complainant was issued another cash advance of $707.20, on November 26, 2011, for the pay period 2012-24. Her Form 50 was processed. Thereafter, Complainant's name appeared in the TACS program and she was paid through the TACS Program. Complainant claimed that she was still owed pay for 20.25 hours of night differential pay, 30 hours of annual leave, and two hours of travel time pay. The Postmaster and supervisor advised Complainant that she should file a grievance through the Union for the difference owed to her, because she could get paid quicker. On January 12, 2012, the supervisor and union official determined she was owed $2,979.60 and settled the grievance for that amount.
On January 18, 2012, the Postmaster drafted a letter to process the payment, but the Postmaster typed the amount incorrectly. He typed $2997.60, rather than $2797.60. Complainant reimbursed the post office for the cash advances, but she continued to disagree with the amount due to her. The Agency paid Complainant another $220.75.
Claim 2 - Told to clock out
On February 24, 2012, Complainant and another employee were sorting mail. Complainant began to explain to the coworker her understanding of the sorting procedure that was desired by the receiving Van Cleave Office. Complainant's supervisor approached Complainant and explained to the Complainant how he wanted the mail sorted. Complainant complained that she was being yelled at by the supervisor and said, "I'm sick of this shit." Report of Investigation (ROI) at page 168. Complainant averred that she made the comment under her breath and did not direct it to the supervisor. Believing that he heard the Complainant make another comment, the supervisor told Complainant to clock out for the day. On March 1, 2012, another supervisor conducted an investigative interview with Complainant about her behavior and the use of profanity on the workroom floor. Complainant refused to answer any of his questions.
Claim 3 - Issued a Notice of Termination
Previously, on December 12, 2011, Complainant was traveling back from a branch office, upon request by management, in her personal vehicle. While she was still on the clock, Complainant was involved in an accident. ROI, page 248. She returned to work and reported the accident. Complainant stated, in her deposition, that she was not at fault. The police report indicated that Complainant was at fault for the accident and ran a red light. ROI, pages 123-128. Complainant acknowledged that the other driver and a witness behind the other driver also said that Complainant ran the red light. An investigative interview was held. Thereafter, the supervisor sent a Disciplinary Action Request to Labor Relations, requesting that Complainant be issued a Letter of Warning for the accident.
No discipline had been issued for the December 2011 accident at the time of issuance of the Notice of Termination. ROI, 121-122. Both actions were combined into a single disciplinary action. The Notice of Removal cited the Complainant's failure to perform duties in a safe manner on December 12, 2011 and the February 24, 2012 incident, which involved the supervisor's belief that Complainant used profanity on the work floor.
Claim 4 - Yelled at and subjected to inappropriate comments
In her affidavit, Complainant stated she had been subjected to unwelcome comments about her age and religion and told by her supervisor that she would be fired. Complainant also described one incident where she was told not to ask "stupid questions. At that time, the supervisor was standing very close to Complainant and whispered in her ear, "You don't get along well with others, do you?" Complainant told him that she did get along well with others. Complainant averred that the encounter upset her and sickened her stomach that he was so close. The supervisor came back five minutes later and asked Complainant if he could buy her lunch. Complainant also stated that she was referred to as "an old woman" by a coworker.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. At the close of discovery, the Agency submitted its Motion for Summary Judgment. When the Complainant did not object, the AJ assigned to the case granted the Agency's May 29, 2013 motion for a decision without a hearing and issued a decision without a hearing on August 1, 2013.
The AJ found that "there was no genuine dispute with respect to any material fact, or issue of credibility which would necessitate a hearing on the merits." The AJ found that the record had been adequately developed and that Complainant was given a comprehensive statement of the undisputed facts and an opportunity to respond to the Agency's Motion. The AJ referenced Complainant's claims that she had unresolved pay issues, was bullied and yelled at, subjected to unwelcome comments about her age and religion, and terminated in reprisal for filing a grievance and circulating a petition on a hostile work environment. The AJ concluded, "even assuming that the incidents occurred as alleged by the Complainant, they do not rise to the level of actionable harassment." The AJ found that Complainant could not establish a prima facie case of hostile harassment based on her protected statuses and failed to establish that the Agency's actions were so severe and pervasive that they created a hostile work environment.
The AJ stated "the record evidence reveals that she was terminated because she: (a) failed to perform duties in a safe manner regarding the accident where she was deemed at fault, and (b) used profanity on the work floor." The AJ determined that the Agency articulated legitimate non-discriminatory reasons for its actions and that there was no evidence of pretext. The AJ entered judgment for the Agency.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed.
ANALYSIS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Disparate Treatment / Sex, Religion, Age and Reprisal
A complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
In addition, to establish a claim of harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 their 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
In this case, the record shows that Complainant claims that she was harassed about her age and religion, subjected to pay disparities and terminated after she filed a hostile workforce petition.
For purposes of our analysis, we will presume that Complainant established her prima facie claims with regard to her sex, religion, age and reprisal claims. With regard to the reprisal claim, the record shows she made EEO contact on February 24, 2012 and the Agency issued a Notice of Termination on March 7, 2012. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Agency stated it corrected the payment errors. With regard to claim 2, the record shows that the supervisor ordered Complainant off the floor because he believed that Complainant used profanity on the work floor. With regard to claim 3 (termination), the Agency stated that Complainant's performance did not meet management's standards, because she failed to perform her duties in a safe manner with regard to an accident where she was deemed at fault, as documented in the police report. The termination was predicated on those reasons.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
In this case, Complainant did not provide any evidence that challenged the Agency's stated reasons. She did not file a brief in support of her appeal. The testimony is undisputed that the Police found Complainant to be at fault for the accident and that she used profanity on the work floor. Looking at all of the evidence in the light most favorable to Complainant, there is no relevant evidence that would show that any of the subject actions were based on Complainant's sex, religion, age or reprisal for EEO activity. The petition that was circulated pertained to the issue of hostile work environment based on workplace violence.
After a careful review of the record, we agree with the conclusion of the AJ that there was no genuine dispute of material fact. Therefore, we find that judgment as a matter of law for the Agency was appropriately entered in this case.
CONCLUSION
Accordingly, we AFFIRM the Agency's final action.
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 tends 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).
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 Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 21, 2015
__________________
Date
2
0120133205
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120133205