0120130873
02-25-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120130873
Agency No. 1E-642-0010-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 15, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler Equipment Operator at the Agency's Kansas City, Kansas National Distribution Center.
On March 30, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment in reprisal for prior EEO activity when:
1. on December 3, 2010, she was mistreated by her supervisor, and yelled at in an aggressive manner;
2. on December 6, 2010, her clock rings were altered/falsified;
3. on December 15, 2010, she was charged Absent Without Leave (AWOL) on her PS Forms 3971's, rather than charged with Family Medical Leave Act (FMLA) leave;
4. from October 18, 2010 to December 31, 2010, she was ordered to report directly to the supervisor who micromanaged her, monitored her, and set higher standards than for other employees; and
5. on an unspecified date, her supervisor called her a "bitch," a "dumb bitch" and a "whore."
After the investigation of the complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew her request. Consequently, the Agency issued the instant final decision on November 15, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. The Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant's supervisor stated that in regard to claim 1, she did not yell at Complainant in a demeaning manner over the telephone. Specifically, the supervisor stated that on December 3, 2010, when she arrived to work, all of her employees were there except for Complainant. The supervisor stated while giving assignments to her employees, she noticed Complainant was in the union office. The supervisor stated that she then called the union office and "indicated to the complainant that I needed her to check into the supervisor's desk, before going to the Union Office. All Employees should either ask or submit a form 13 when requesting Union time." The supervisor stated that after Complainant told her that she needed union time and would be staying in the union office, she told Complainant "I would need her to come request Union time on an official form and then hung up the phone."
The supervisor stated that after her telephone conversation with Complainant, the Union Branch President and Acting Chief Steward came to her desk and wanted to find out why she would not give Complainant union time. The supervisor stated she explained to the Union Branch President and Acting Chief Steward "that based on the mail volume and staffing I would need the complainant to do her bid job and would check on offering Union time later that night...I then called [Manager Distribution Operations (Manager)] and advised him that I would need some assistance since I had three Union Stewards at my desk," and the Manager summoned the union stewards to his office.
Regarding claim 2, the supervisor denied altering Complainant's clock rings by moving her to union tie when she was not in the building on December 2, 2010. The supervisor stated "that is not true. Clock Rings were only corrected if an employee showed up on the clock ring error report that comes out daily. No clock rings were changed for complainant on Dec. 2, 2010."
With respect to Complainant's allegation that on November 16, 2010, the supervisor falsified Complainant's PS Form 1260, the supervisor denied it.1 In support of her assertions, she submitted a copy of the clock rings which were printed on November 17, 2010 "showing the error of the complainant's clock rings turned off. Also see attached 1260, which show I moved employee to the correct operation which was 6120 for Union-time"
Further, the supervisor stated that on November 16, 2010, Complainant "made a move to Operation 6300-63 which is designated for meetings times, such as safety talk, trainings or things of that nature. Complainant swiped over to that operation at 18:62. She had a Step One with [name female employee] that day that begin at the start of her shift and ended about 8:45 p.m. Union time rather than it be Step One, DAP or seeing another employee should be shown as Union-time which is operation 6120-00. She remained on the incorrect operation from 18:62-23:12. When the clock ring error report printed up the next day on 11/17/2010, I noticed the complainant was on the report. At that time, I went in and printed the report and switched employee to the correct operation. I then advised [Complainant] that she was on the incorrect operation 11/16/2010. She then informed me that [named male employee] informed her as well as other Union Stewards that they may used that Operation number 6300-63 when having DAP's (which is meetings on Discipline) or Step Ones."
The supervisor stated that during the relevant period, the Manager conducted an investigation into Complainant's claims that the supervisor falsified her clock rings. Moreover, the supervisor stated "after the conclusion of the investigation it was found that I was not in violation of altering the complainant's clock rings."
The Manager stated that he met with Complainant and the chief steward concerning Complainant's allegations that the supervisor falsified her clock rings. The Manager stated that he told Complainant and the chief steward "I would investigate the allegations. And I did so. I found the allegations not to be true. I called [supervisor] and talked with her about the allegations. I say her down from supervising until I completed the investigation."
Regarding claim 3, the supervisor denied Complainant's claim that between October 2012 and December 2010, the supervisor printed and signed a PS Form 3971 for Complainant giving her four hours of unpaid leave and no FMLA protection even thought she had called into ERMS for FMLA sick leave. Specifically, the supervisor stated "that is not true. Employee received FMLA."
Regarding claim 4, the Manager denied Complainant's claim that he micromanaged her, monitored her, and set higher standards for her than other employees. The Manager stated "because the complainant was advised to swipe her badge to union time and the complainant would not swipe over to union time, and we were having to monitor her clock rings because the union was complaining in the labor management meetings that stewards were [not] getting union time. Complainant was swiping over to meeting times, therefore, not showing any union time."
The supervisor denied treating Complainant different from other employees. Specifically, the supervisor stated "I treated the complainant no differently than any other employee."
Regarding claim 5, Complainant alleged that after meeting with the Manager and a named employee about the supervisor yelling at her and altering her clock rings, Complainant returned to the unit and the supervisor look disgusted. Complainant further alleged that when she asked the supervisor if she could go on union time or whether she was needed on the floor, the supervisor again yelled at her very rudely "No! I don't need you! Go!." Complainant alleged that as she walked away, she heard the supervisor say "dumb bitch, go file yo little grievances, EEO's don't stick." In her affidavit, the supervisor denied Complainant's claims. Specifically, the supervisor stated that when Complainant reported to her after her meeting with the Manager, she asked "did I need her in the Unit, and if not, could she go on Union time. I stated she could go on Union time, and that I would get someone else to replace her. That is all."
With respect to Complainant's harassment claim, the Manager stated "I have never allowed, nor participated in any harassment against complainant. We have had problems with the complainant staying in her unit...Complainant would not clock over to union time." The Manager stated that sometime in October 2010, the supervisor asked Complainant "what she was working on and refused to give that information on what she was working on while she was in the union office. See attachment regarding Article 17 that supervisors have the right to ask for that information."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
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).
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
February 25, 2015
__________________
Date
1 The record reflects that employees are required to use PS Form 1260 "Non-Electronic Badge Reader Card" if their time needs to be put in the timekeeping system (i.e. not having a timecard, not clocking in or out for lunch, and making moves).
2 On appeal, Complainant does not challenge the April 11, 2011 partial dismissal issued by the agency regarding one other claim (that she was subjected to harassment and a hostile work environment on the basis of reprisal for prior EEO activity when on an unspecified date, she was denied union time). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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