Enriqueta T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 4, 20190120180136 (E.E.O.C. Sep. 4, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Enriqueta T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal Nos. 0120180136, 2019003008 Agency Nos. 4G-770-0051-14, 4G-770-0228-12 DECISION Complainant timely filed two separate appeals2 with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 21, 2017, and August 31, 2017, final decisions concerning her equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final decisions. 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. 2 The Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its discretion and consolidates the above-captioned cases. 0120180136, 2019003008 2 ISSUE PRESENTED The issue presented is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, sex, disability, age, and/or reprisal. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Rural Carrier at the Agency’s Conroe, Texas, Post Office. Complainant is a White female, and she was 48 years old at the time of events giving rise to her first complaint. According to Complainant, she first engaged in protected EEO activity on June 25, 2012, when she contacted an EEO Counselor to initiate her first complaint. Complainant stated that she fractured several ribs in an on-the-job injury on October 15, 2013. According to Complainant, because of this impairment she was substantially limited in several major life activities such as working, sleeping, walking, and breathing. According to Complainant, she has been repeatedly harassed by a 204B Acting Supervisor (S1) since approximately June 2012. S1 is a White female, and she was 42 years old in June 2012. Complainant stated that S1 gossips about her with her friends and makes degrading comments about her. Complainant alleged that on June 6, 2012, S1 watched her in the morning and said that Complainant was “popping that mail.” According to S1, she made this comment because Complainant was throwing mail so hard that letters were falling out of the distribution case. Complainant averred that on June 21, 2012, S1 followed her around, laughing. Complainant stated that on June 25, 2012, S1 laughed at her, told her she drank a lot, and said that she was surprised that Complainant had not been arrested or charged with driving while intoxicated (DWI). According to Complainant, on June 29, 2012, S1 said that she wanted Complainant fired, and on June 30, 2012, S1 cried like a baby while she was near Complainant’s work area. S1 denied talking about Complainant’s drinking or wanting her fired or crying like a baby near Complainant’s work area. Complainant averred that on August 9 and 10, 2012, S1 watched her movements and laughed at her. S1 denied harassing Complainant or making the alleged comments, but she stated that she was the supervisor responsible for monitoring attendance at the time. Complainant alleged that she left work early on June 6, 2012, because she was experiencing anxiety after being harassed by S1. Complainant averred that on June 13, 2012, the Rural Carrier Supervisor (S2) asked her for medical documentation for her June 6-11, 2012, absence. According to Complainant, she gave S2 a June 8, 2012, doctor’s note, but S2 returned it to her and told her it was not acceptable because it was not worded correctly. According to S2, he told her that the note was not acceptable because the doctor’s note did not state that Complainant was unable to perform her duties, and it did not cover all of the days she was absent. Complainant stated that on June 14, 2012, S2 asked for the medical documentation again. Complainant alleged that later that morning S1 told her that the documentation did not cover her absence for June 6 or 7, 2012. S1 averred that the documentation was not acceptable because it did not specify the reason that Complainant was absent or cover all of the dates of her absence. 0120180136, 2019003008 3 According to Complainant, she went back to the doctor on June 14, 2012, to obtain a new note, and she submitted it to management on June 15, 2012. Complainant stated that on June 20, 2012, S1 told her that she had not received the updated medical documentation. According to S1, she received Complainant’s updated medical documentation on June 21, 2012. Complainant stated that on June 20, 2012, S1 issued her a Letter of Warning dated June 6, 2012, for unsatisfactory attendance. The Letter stated that Complainant had unscheduled absences on January 30, 2012, April 14-16, 2012, and May 21, 2012. S1 stated that she conducted a pre- disciplinary interview with Complainant on June 6, 2012, and that there were no mitigating circumstances related to Complainant’s unscheduled absences. According to Complainant, she should not have been issued the Letter of Warning because Rural Carriers can have up to three unscheduled absences per quarter, and she did not exceed this number of unscheduled absences. Complainant also stated that one of the unscheduled absences corresponded to an on-the-job injury and that it was unfair to penalize her for that absence. Complainant grieved the Letter of Warning, and on June 21, 2012, it was reduced to a “90-day review,” meaning that the document would be removed from Complainant’s file in 90 days if she did not have additional unscheduled absences. Complainant averred that on August 10, August 15, and September 4, 2012, she requested annual leave for September 14-15, 2012. Complainant stated that she wanted these days off to celebrate her son’s birthday. According to the record, September 15, 2012, was a Saturday. S1 stated that the Post Office was short-staffed on weekends at that time, so annual leave for Saturdays was not generally approved in advance. According to Complainant, the Postmaster (S3) denied her leave requests because he would have had to cover her shifts with overtime. Complainant alleged that other employees’ annual leave requests were approved by S3 even though covering their shifts required paying overtime. According to the record, Complainant’s leave request was approved on September 11, 2012. Complainant averred that her leave request was ultimately approved at the last minute, but she felt as if she had to jump through extra hoops. Complainant alleged that on September 21, 2012, S1 tried to run her over with her mail delivery vehicle in the parking lot. Complainant stated that S1 was driving very fast and that she had to jump out of the way to avoid being hit. Complainant averred that she was terrified. S1 denied trying to hit Complainant with the vehicle. According to Complainant, she immediately reported the incident to management, but, to her knowledge, no action was taken. S1 stated that management investigated the matter and concluded that Complainant’s allegation was not true. Complainant averred that she overheard S1 ask her friends, “What are they going to do, fire me?” S3 stated that when he learned that Complainant thought she was being harassed by S1, he directed a Supervisor, Customer Service (S4) to investigate and moved S1’s work station so she was farther away from Complainant. According to S3, Complainant and S1 were close friends at one time but seemed to have a falling out at some point in 2012. S4 averred that he investigated Complainant’s allegation that S1 was harassing her and that he determined that S1 was not harassing Complainant but was exercising normal supervisory oversight. 0120180136, 2019003008 4 According to S4, he determined that S1 did not try to run Complainant over, but he referred the investigation to another supervisor and ultimately to Postal Inspectors when Complainant stated that his investigation was not impartial. According to Complainant, on September 27, 2012, she was talking with S3 and S4 about the September 21, 2012, incident, and S3 and S4 were not taking her concerns seriously. Complainant alleged that, when she complained, S4 told her that if she did not like the way they were handling it, she “could go home.” The record contains a September 27, 2012, sick-leave request submitted by Complainant. Complainant took sick leave for the remainder of the day, but she averred that she should not have been charged a day of sick leave for reporting harassment by S1. Complainant stated that her name was on the overtime-desired list and that October 16, 2012, was her scheduled day off. According to Complainant, on October 15, 2012, S2 told her coworkers on the overtime desired list that they would work overtime on October 16, 2012, but he did not tell Complainant to come in to work overtime. S2 stated that he called all employees on the overtime desired list on October 16, 2012, to offer overtime but that all routes were covered by the time Complainant returned his call. Complainant averred that on December 7, 2012, a Supervisor, Customer Service (S5) issued her a Letter of Warning for unsatisfactory attendance and failure to maintain a regular work schedule. The Letter of Warning cited unscheduled absences on September 27-28, October 17, and November 29, 2012. S3 averred that supervisors are automatically notified when an employee incurs three unscheduled absences within a 90-day period. According to Complainant, the cited dates spanned two quarters, and some of the dates corresponded to her speaking to management and the union about S1 trying to run her over and harassing her. S5 stated that she interviewed Complainant about the absences on December 6, 2012, and that Complainant grieved the Letter of Warning, which was reduced to a 90-day review. According to Complainant, she was injured while working in the afternoon on October 15, 2013, and she reported the injury at 7:30 a.m. on October 16, 2013, to the Agency’s call-in center and to the Rural Carrier Supervisor (S6). Complainant averred that on October 16, 2013, S6 told her that her injury claim would not be accepted because she had not immediately reported the injury. Complainant stated that she submitted a Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, Form CA-1, to S3 on October 17, 2013, and he told her that her injury claim would not be accepted because she had hurt herself bowling the night before. According to Complainant, she had not been bowling. The record contains a Form CA-1 signed by Complainant on October 17, 2013, which states that she felt a pull in her left shoulder while moving a tray of mail and that she woke up in the middle night with extreme pain in her left shoulder and back and breathing trouble. Complainant alleged that she asked S3 for a copy of the accident report, PS Form 1769, when she submitted the Form CA-1 but that she did not receive one. Complainant stated that she spoke with a Houston District Injury Claims Office employee on October 18, 2013 and asked for copies of the forms needed to authorize medical treatment to be sent to her doctor. 0120180136, 2019003008 5 Complainant averred that her doctor never received these forms from the Agency and that she delayed seeing her preferred doctor until November 7, 2013, when she decided that she could not continue to delay treatment until the Agency sent the forms. Complainant averred that on October 22, 2013, a Rural Carrier Supervisor (S7) left her a message that she needed to come in to sign her Form CA-1 so she could see a doctor. According to Complainant, on October 23, 2013, she noticed that S7 had changed her wording about her injury and her symptoms. The record contains a Form CA-1 signed by Complainant on October 23, 2013, that described her injury as a left shoulder strain. Complainant stated that she asked S7 for a copy of PS Form 1769 at this time. S7 stated that in October 2013 Complainant had not given the Agency enough information to complete an accident report, noting that, as of November 7, 2013, the only medical documentation Complainant provided was a note stating that she had been seen by a doctor on a certain date. Complainant averred that she should have been offered work on October 23, 2013, but that she was not. According to Complainant, she received a Letter of Warning for unsatisfactory safety performance signed by S6 on November 2, 2013. According to the Letter of Warning, Complainant’s October 15, 2013, injury was preventable. Complainant alleged that she called S3 and asked for the PS Form 1769 over the phone on November 2, 2013. Complainant averred that the accident report should have been ready and available for her if she was already being disciplined for her injury. According to the record, Complainant grieved the Letter of Warning, and it was reduced to an official discussion. Complainant stated that on November 15, 2013, she asked S7 for the PS Form 1769 and S7 told her that she was not entitled to a copy and that she was lucky that she had gotten to see the Form CA-1. S7 denied making this statement or withholding documents from Complainant. According to S7, she told Complainant that she needed S3’s permission and that she gave Complainant a copy when S3 said that it was alright. The record contains a December 3, 2013, Form CA-17 Duty Status Report, in which Complainant’s doctor indicated that she was not cleared for employment because she was taking narcotics and that the only functional activities Complainant could perform were four hours sitting and two hours walking. Complainant averred that on December 11, 2013, the Acting Postmaster (S8) told her that her medical documentation was not acceptable. According to S8, Complainant originally reported a shoulder injury, then she changed her story and stated that she had broken her ribs. The record contains a February 20, 2014, note from Complainant’s doctor that stated that Complainant could do light work with restrictions of no lifting more than 10 pounds and no stressful activity for the shoulder. S6 stated that Complainant provided a doctor’s note stating that she had restrictions and was unable to do her normal job duties but that she did not provide the needed Form CA-17 completed by her doctor until March 2014. Complainant alleged that since that date she sent all of her medical documentation to management and requested work. The record contains a March 18, 2014, Form CA-17 Duty Status Report, which states that Complainant could not perform her job duties but that she could perform sedentary desk work with a 10-pound lifting restriction. 0120180136, 2019003008 6 According to Complainant, on March 21, 2014, S6 told her that there was no light duty work available within her restrictions. S6 stated that there was no work that would accommodate Complainant’s lifting restriction. S8 averred that Rural Carriers are not entitled to light duty under the terms of their contract. Complainant averred that management may have delayed processing her accident report and denied her light duty because she had previously rejected S3’s sexual advances. Complainant alleged that beginning in 2006 or 2007 when she was a part-time employee, S3 began sexually harassing her. According to Complainant, S3 would see her at a restaurant that she frequented at that time. Complainant stated that S3 harassed her on a daily basis, doing things such as putting his hand on her inner thigh, brushing her hair off her shoulder, calling her a “MILF,” and following her home from the restaurant. According to Complainant, she told S3 that he was married and that she was not interested in his attention. Complainant alleged that S3 wanted to come into her home but that she refused. Complainant stated that when S3 touched her she would leave the restaurant or leave her work area to get away from him. According to Complainant, S3 offered to help her become a supervisor, and he told her that he had helped another female employee pass the supervisor’s test. S3 denied sexually harassing Complainant, touching her, invading her personal space, following her home, or offering to help her get a supervisory position. Complainant stated that she stopped going to the restaurant in question to avoid S3. Complainant averred that in December 2007 S3 stopped harassing her daily but that the harassment has been ongoing. According to Complainant, S3’s promiscuity was an open secret among Conroe employees. Procedural History On October 10, 2012, Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency discriminated against her on the bases of race (White), sex (female), age (48), and reprisal for prior protected EEO activity when: 1. Beginning on or about June 6, 2012, S1 subjected her to degrading comments, such as “popping that mail,” “you drink a lot,” “surprised you have not received a DWI,” stated that she wants Complainant fired, laughed at Complainant, cried like a baby while standing around Complainant’s work area, followed Complainant on the workroom floor, and watched Complainant’s movement throughout the morning; 2. On June 6, 2012, she was issued a Letter of Warning for attendance; 3. On June 13 and 14, 2012, management refused to accept and then lost her medical documentation; 4. On August 10, August 15, and September 4, 2012, her request for annual leave for September 14-15, 2012, was denied; 5. On September 21, 2012, S1 tried to run her over with her mail delivery vehicle; 0120180136, 2019003008 7 6. On September 27, 2012, she was sent home; 7. On October 16, 2012, her request for overtime was denied; and 8. On December 7, 2012, she was issued a Letter of Warning. On January 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (fractured ribs), age (49), and reprisal for prior protected EEO activity when: 9. Beginning on an unspecified date, she was subjected to unwanted sexual advances from S3; 10. She was not provided a copy of the Accident Report as requested; 11. She was issued a Letter of Warning dated October 15, 2013; and 12. Since October 23, 2013, she has not been provided work.3 At the conclusion of the investigation into the accepted claims, 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 (AJ). Complainant timely requested a hearing for both of her complaints, but she subsequently withdrew her requests. Consequently, the Agency issued final decisions pursuant to 29 C.F.R. § 1614.110(b).4 The decisions concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeals followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she testified about extensive harassment by S1 and sexual harassment by S3 and that the EEO Investigators did not contact potential witnesses who could 3 The Agency dismissed four additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim as a collateral attack on matters within the purview of the Department of Labor’s Office of Workers Compensation Programs (OWCP). On appeal, Complainant does not challenge the Agency’s procedural dismissal of these claims. The Commission will therefore exercise its discretion and not address the dismissed claims. 4 On appeal, Complainant contends that neither she nor her representative received a final decision on Agency No. 4G-770-0228-12. The record reflects that the Agency issued its final decision for that complaint on August 21, 2017, and also mailed copies to Complainant and her representative at their addresses of record on that date. 0120180136, 2019003008 8 have corroborated her account.5 According to Complainant, she established that the Agency failed to participate in the interactive process to see if she could be reasonably accommodated after her on-the-job injury. Complainant concedes that the record does not establish that she was subjected to discrimination based on age, but she claims she established that she was denied a reasonable accommodation, that she was subjected to sexual harassment, that she was subjected to a hostile work environment, and that the Agency’s legitimate, nondiscriminatory reasons for its actions were pretextual. Complainant requests that the Commission find that she was subjected to discrimination and award her damages. In response to Complainant’s appeals, the Agency contends that its final decisions finding no discrimination should be affirmed because Complainant did not establish by the preponderance of the evidence in the record that she was subjected to discrimination as alleged. ANALYSIS AND FINDINGS As these are appeals from decisions issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decisions are 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”). Denial of a Reasonable Accommodation Complainant alleged that she was denied a reasonable accommodation when the Agency did not provide her with work within her medical restrictions beginning on October 23, 2013. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), (p). “The term ’qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment 5 The record does not reflect that the EEO Investigators neglected to interview relevant witnesses. Further, we have thoroughly reviewed both of the reports of investigation and find the record sufficiently developed. 0120180136, 2019003008 9 position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). It is undisputed that Complainant is an individual with a disability. According to the record, the Agency possessed limited medical documentation that did not detail Complainant’s medical restrictions until December 3, 2013. Further, the December 3, 2013, documentation stated that Complainant could not work because she was taking narcotics. Therefore, Complainant, who was on leave, could not perform the essential functions of her position at this time. In February and March 2014, Complainant provided additional documentation releasing her for sedentary work with a 10-pound lifting restriction. Although Complainant contends that there was work that she could have performed within her restrictions, we find that the preponderance of the evidence does not support her contention. Complainant has not shown that there existed an accommodation that would have enabled her to perform the essential functions of her Rural Carrier position. Further, the record reflects that the Agency appropriately conducted a search for work within her medical restrictions after determining that she could not perform her Rural Carrier duties with or without a reasonable accommodation and that there did not exist a suitable vacancy. Accordingly, we find that Complainant has not established that the Agency unlawfully denied her a reasonable accommodation. We will separately analyze this allegation as a disparate-treatment claim below. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant alleged that she was subjected to discrimination when she received Letters of Warning for attendance on June 6 and December 7, 2012. The Agency’s legitimate, nondiscriminatory reason for issuing both of the Letters of Warning is that Complainant had more than two unscheduled absences within a 90-day period. Although Complainant contends that the policy was supposed to look at absences within a quarter rather than any 90-day period, the record does not establish that to be the case. Moreover, the preponderance of the record does not otherwise establish that the Agency’s proffered legitimate, nondiscriminatory reason was pretextual. 0120180136, 2019003008 10 Complainant alleged that she was discriminated against when she was told that her June 2012 medical documentation was not adequate. The Agency’s legitimate, nondiscriminatory explanation was that the initial documentation did not cover all of the days of Complainant’s absence or state that she was unable to work on the dates in question. Upon review, the preponderance of the evidence in the record does not establish that the Agency’s legitimate, nondiscriminatory reason was a pretext for discriminatory animus. Complainant alleged discrimination with respect to S3 denying her annual leave request for September 2012. Although Complainant’s leave request was ultimately approved, the Agency’s legitimate, nondiscriminatory reasons for denying her previous leave requests was that the Post Office was short-staffed on the weekends and that S3 wanted to minimize the use of overtime. As evidence of pretext, Complainant contends that other employees did not have to jump through as many hoops to get their leave requests approved. However, there is no evidence in the record of similarly situated employees who had annual leave requests approved weeks in advance by S3, and Complainant has not otherwise established that the Agency’s legitimate, nondiscriminatory reasons are pretexts designed to mask discrimination based on race, sex, and/or age. Complainant alleged that she was discriminated against when she was sent home on September 27, 2012. The Agency’s legitimate, nondiscriminatory explanation for its actions is that Complainant requested sick leave for September 27 and 28, 2012, and that her request was approved. Complainant characterized being charged with sick leave as unfair, but the preponderance of the evidence in the record does not establish that the Agency’s legitimate, nondiscriminatory reasons are pretextual. Complainant alleged that she was subjected to discrimination when she did not work overtime on October 16, 2012. The Agency’s legitimate, nondiscriminatory reason for not assigning Complainant overtime on the date in question was that there were no assignments remaining when Complainant returned her supervisor’s call. Complainant alleged that other employees were told about the overtime opportunity on October 15, 2012, but the preponderance of the evidence in the record does not establish this to be the case. We also find that the preponderance of the evidence in the record does not establish pretext. Complainant alleged that she was subjected to discrimination when she did not receive a copy of the accident report. The Agency’s legitimate, nondiscriminatory explanation for its actions is that Complainant did receive a copy of the accident report after S3 gave permission for the document to be released. Although Complainant contends that she was not provided a copy of the accident report at that time, we find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reason was pretextual. Complainant alleged discrimination when she received a Letter of Warning related to her October 15, 2013, on-the-job injury. 0120180136, 2019003008 11 The Agency’s legitimate, nondiscriminatory reason for issuing the Letter of Warning was that its internal investigation of the events on that day determined that her injury could have been avoided if she had adhered to the Agency’s safety procedures. According to the record, Complainant was asked to attend an investigative interview regarding the accident, but she did not, so the assessment was based on her verbal and written descriptions of what happened that day. Although Complainant contends that it was unfair to punish her for getting hurt, we find that the preponderance of the evidence in the record does not establish pretext for discrimination. Finally, Complainant alleged that she was discriminated against when she was not provided work beginning on October 23, 2013. The Agency’s legitimate, nondiscriminatory reasons for not providing her with work were that her medical documentation initially indicated that she could not work at all and that there was no work available within her medical restrictions when her doctor said she could perform sedentary work in February and March 2014. We find that the preponderance of the evidence in the record does not establish that these legitimate, nondiscriminatory reasons were pretextual. Sexual Harassment Complainant alleged that she was subjected to sexual harassment by S3 beginning in 2006 or 2007. In order to establish a prima facie case of sexual harassment, a complainant must establish that: (1) she is a member of a statutorily protected group; (2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment of which she complained is based on sex; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with her 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, 903-05 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s situation. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994) (Enforcement Guidance on Harris v. Forklift Systems, Inc.). Complainant’s alleges that S3 sexually harassed her on a daily basis for approximately one year and that the unwanted harassment included sexual advances, touching her, invading her personal space, calling her a MILF, going to a restaurant frequented by Complainant, following her home and asking to come inside, and offering to help her obtain a supervisory position if she submitted to his advances. These allegations are quite troubling, particularly in light of the fact that Complainant was a part-time employee at the time. However, we find that Complainant has not established by the preponderance of the evidence in the record that the sexual harassment occurred in the manner alleged. S3 denied sexually harassing Complainant. These allegations of concern conflicts in witness testimony, and Complainant did not produce any additional evidence to support her assertions. Complainant withdrew her request for a hearing before an EEOC Administrative Judge, and as a result we do not have the benefit of an Administrative Judge's credibility determinations of the witnesses in this case. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. 0120180136, 2019003008 12 When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Accordingly, Complainant has not established by the preponderance of the evidence in the record that she was subjected to sexual harassment. Hostile Work Environment (Non-Sexual Harassment) Complainant also alleged that she was subjected to non-sexual harassment that constituted a 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, 682 F.2d at 901-05. 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 again be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Enforcement Guidance on Harris v. Forklift Systems, Inc. Here, there is no evident connection between the alleged harassment and Complainant’s race, sex, disability, age, and/or prior protected EEO activity. In addition to the allegations already discussed above, Complainant alleged that she was subjected to verbal and physical harassment by S1. However, S1 was a White female who was also over the age of 40, and the alleged harassment by S1 did not involve Complainant’s membership in these protected classes. The record reflects that Complainant reported that she was being harassed to management after S1 allegedly tried to run Complainant over on September 12, 2012, but the record reflects that S3 appropriately separated Complainant and S1 and asked S4 to investigate. Further, when Complainant accused S4 of not impartially investigating the matter, the record reflects that he referred the matter to the Agency’s Postal Inspectors. Accordingly, we find that Complainant has not established that she was subjected to a hostile work environment. 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 decisions because the preponderance of the evidence in the record does not establish that discrimination occurred. 0120180136, 2019003008 13 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. 0120180136, 2019003008 14 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 September 4, 2019 Date Copy with citationCopy as parenthetical citation