0120182333
10-05-2018
Cristen T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cristen T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120182333
Agency No. 4K290002515
DECISION
On June 28, 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 May 25, 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., 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.
ISSUES PRESENTED
Whether Complainant established that she was discriminated against based on race, age, and retaliation (prior EEO activity), when: (1) On October 31, 2014, her request for leave was denied; (2) On November 22, 2014, she was placed on Emergency Placement in an Off-Duty Status Without Pay; and (3) On December 29, 2014, she was issued a Notice of Removal for Improper Conduct/Failure to Follow Instructions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Irmo Post Office facility in Irmo, South Carolina. On April 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), age (41), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On October 31, 2014, her request for leave was denied;
2. On November 22, 2014, she was placed on Emergency Placement in an Off-Duty Status Without Pay; and
3. On December 29, 2014, she was issued a Notice of Removal for Improper Conduct/Failure to Follow Instructions.
The Agency articulated that Complainant did not request leave as claimed; and that she was disciplined for failing to follow instructions and for improper conduct. The Agency explained that pursuant to an agreement with the Union, Complainant was returned to work and her notice of removal was reduced to a long-term suspension. The Agency stated that Complainant's race, age, and prior EEO activity were not determining factors in its decision-making process.
The pertinent facts of the case as presented are as follows:
1. Request for leave denial.
Complainant averred that the Postmaster (S1), who at the time was the acting Officer-in-Charge (OIC), had previously granted her leave for October 31, 2014 to go to an Employee Assistance Program (EAP) appointment and then return to complete her route. (Investigative File [IF], Affidavit [Aff]. A, p. 4). She testified that she was going to meet with EAP to discuss her immediate concerns about Postmaster (S2), and Postmaster (S3) treatment of her. (IF, Aft. A, p. 25).
Complainant contended that S3, who at the time was a Supervisor of Customer Service, subsequently denied her leave request on October 30, 2014. (IF, Aff. A, p. 4).
Complainant contended that S3 did not give her a reason as to why she could not leave to go to her appointment when other employees have been allowed leave for doctor appointments, therapy sessions, and dental appointments. (IF, Aff. A, p. 5). She testified that when she asked why her request was denied, S3 stated "because I said so" and walked away.
Complainant declared that it was Agency policy that the first visit to EAP was on the clock and S3 violated this policy by denying her the leave. (IF, Aft. A, p. 6).
The record contains Complainant's payroll records which showed that during Pay Period 24 of 2014, (November 8, 2014 through November 14, 2014, she requested and was granted eight hours of Annual Leave and 16 hours of Sick Leave. (IF, Exhibit [Exh]. 10, pp. 1-13).
S1 testified that to his knowledge he did not approve any leave requests for Complainant for October 31, 2014 and contended that she may have her dates wrong. He declared that he knew on October 1, 2014, he was going back to his regular postal facility and he would not have approved any leave requests for Complainant or anyone else, after he learned he was leaving the facility. S1 attested that he does not recall Complainant submitting any leave request forms to him before he departed. (IF, Aff. E, p. 2). He averred that he also did not recall having any discussions with Complainant about her needing to go to the EAP on October 31, 2014. (IF, Aff.E, p. 3).
S3 stated that when an employee has approved leave it is placed into the system, and once this is done, the leave cannot be denied.
2. Emergency Placement in an Off-Duty Status Without Pay.
Complainant contended that S3 and S2 were responsible for her emergency placement in an off-duty status on November 22, 2014. (IF, Aff. A, p. 12). She averred that on December 5, 2014, she received a letter notifying her of the placement which was dated November 25, 2014. (IF, Aff. A, p. 12).
Complainant testified that she was placed in the off-duty status for alleged threatening conduct but she claimed that she never threatened S3 and never made any statements, gestures, or actions, towards S3. She attested that S3 abused her authority by putting her on Emergency Placement when she did nothing to warrant such an act. (IF, Aff. A, p. 13).
Complainant averred that she was off work from November 22, 2014, until December 24, 2014, the date she received the Notice of Removal for Improper Conduct and Failure to Follow Instructions. (IF, Aff. A, pp. 13-14). She contended that the requirements for placing someone Emergency Placement were not met. (IF, Aff. A, p. 14).
S3 stated that she put Complainant on Emergency Placement on November 22, 2014 due to Complainant's failure to follow instructions to return to her "case" and for improper behavior on the workroom floor. (IF, Aff. B, p. 11). She disagreed with Complainant's contentions that she abused her authority by putting her on Emergency Placement, and there were three supporting witness statements to the events. (IF, Aff. B, p. 12).
The record contains an Emergency Placement in Off-Duty Status (notice), dated November 25, 2014, from S3 to Complainant which notified her that she was placed in an off-duty status without pay, effective November 22, 2014. The notice stated that the action was taken as a result of Complainant's failure to follow instructions and a violation of the Zero Tolerance Policy.
The notice detailed that on November 22, 2014, Complainant approached S3 and stated "That's your problem. You are working out of your craft." When instructed to return to her case and to stop the comments, Complainant did not follow instructions, began yelling, pointed her finger in S3's face, and stated "I'm going to get you." (IF, Exh. 6, pp. 1-2).
The record includes statements by three employees identified by Complainant, and three identified by S3, who testified that there were verbal exchanges between Complainant and S3.
Three witness statements from the day of the altercation indicated that threats were made; and in the three witness depositions provided by Complainant, one was undated and two were dated almost two years later. One of the witnesses stated that she was too far away to hear exactly what was said. (IF, Post Investigation, pp. 27-34; Exh. 11, p. 1; Exh. 12, p. 1; Exh. 13, p. 1)
Article 16, Section 5 of the National Agreement between the United States Postal Service and the National Rural Letter Carriers' Association states that an employee may be immediately placed on an off-duty status (without pay) in cases where the employee may be injurious to self or others. (IF, Exh. 17, pp. 7). The record also contains a copy of the Zero Tolerance Policy which provides that all employees are on notice that threats committed against other postal employees will elicit an immediate and firm response. (IF, Exh. 19, p. 1).
3. Notice of Removal for Improper Conduct/Failure to Follow Instructions.
Complainant attested that S2 issued her the Notice of Removal for Improper Conduct/Failure to Follow Instructions. This resulted from her being placed off-duty because of her altercation with S3. Complainant averred that she learned about her removal when she received the notice in the mail. (IF, Aff. A, p. 19). Complainant contended that she had no conversation about the removal and was not allowed to explain her side of the charge. (IF, Aff. A, p. 20). However, she averred that she was mandated to go to the District Office for a PDI on December 16, 2014. (IF, Aff. A, pp. 14, 20). She attested that this discipline was not progressive. (IF, Aff. A, p. 20).
Complainant testified that she never threatened nor was she disruptive on the workroom floor and was not given a direct order to leave. She testified that she had called her Union Representative, and explained to her what was going on; and the Union Representative spoke with one of her coworkers who stated that Complainant was not being disruptive. Complainant averred that the Union Representative advised her to leave the workplace and they would deal with it later in the day. (IF, Aff. A, p. 21).
S2 attested Complainant was allowed to explain her side of the incident in a PDI, and that the subsequent discipline was progressive and proper under applicable Postal Policies. (IF, Aff. C, pp. 6-7).
The Agency noted that Complainant's Union filed grievances on both the emergency placement and notice of removal. Those grievances were settled on January 26, 2016, and both the Emergency Placement and removal were rescinded.
The record contains past discipline for Complainant which included a Letter of Warning for Failure to Follow Supervisors Instructions dated June 12, 2014; a Seven Day Suspension for Failure to follow Instructions/Failure to Properly Perform the Duties of her Position dated June 30, 2014; and a 14 Day Suspension for Improper Conduct dated October 2, 2014. (IF, Exh. 3, pp. 1-2; Exh. 4, pp. 1-2; Exh. 5, pp. 1-2).
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 an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a 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 as alleged.
CONTENTIONS ON APPEAL
Among other things, Complainant contends that she clearly suffered an adverse employment action when the Agency denied her leave request, when she was put on emergency placement without pay, and when she was subsequently removed from service. Complainant also contends that the Agency's actions were retaliatory based on her prior EEO activity. As comparators, Complainant identified other employees whom, she alleges, received more favorable treatment from the Agency than she did.
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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on race, age and retaliation; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency indicated that there was no indication that Complainant had approved leave on the date alleged and therefore its management official did not cancel or deny any leave. Likewise, the Agency stated that Complainant was placed in an emergency off-duty status and issued a notice of removal because she failed to obey her supervisor's orders, and conducted herself in a manner that displayed violent and/or threatening behavior in the workplace. We find no persuasive evidence that Complainant's race, age or previous EEO activity played any role in these matters.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision because the preponderance of the evidence in the record does not establish that discrimination occurred.
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). 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. 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
__10/5/18________________
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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