Hana D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 5, 20190120182266 (E.E.O.C. Feb. 5, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hana D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120182266 Hearing No. 440-2018-00215X Agency No. 1J531002617 DECISION On June 26, 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 22, 2018, final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a mail processing clerk, PS-06, at the Agency’s Palatine Processing and Distribution Center facility in Palatine, Illinois. On April 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (brown), sex (female/pregnant), and physical disability (pregnant) when: (1) on December 25, 2016, she was attacked by a co-worker 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. 0120182266 2 and placed on emergency placement and, (2) on an unspecified date, she was issued a Notice of Removal, dated January 31, 2017. The Agency accepted the complaint and conducted an investigation which revealed the following pertinent evidence. On December 25, 2016, Complainant, who was four months pregnant, and a co-worker were involved in an altercation. Complainant acknowledged that she initiated the conflict with a verbal confrontation. However, she alleged that the co-worker initiated the physical contact, punching her in the face and ripping her shirt. Complainant denied that she ever hit the co-worker. During the course of the altercation, Complainant called the police who, upon arrival, called for an ambulance. Complainant indicated that, as she was leaving to go to the hospital for treatment, the manager informed her that she was placing Complainant on emergency placement because there were witnesses who stated that she hit the co-worker. The manager indicated that, according to witnesses, Complainant and the co-worker were engaged in a verbal confrontation, Complainant placed her finger on the co-worker’s forehead while they were arguing, after which the co-worker punched Complainant and ripped her shirt. Getting into a physical altercation triggers an automatic emergency placement until further investigation. Therefore, on December 25, 2016, the manager placed both Complainant and the co-worker on emergency placement for violating the Agency’s “zero tolerance policy” for such physical altercations. A Request for Discipline for Complainant, dated December 25, 2016, indicates Complainant and co-worker had a verbal exchange, Complainant put her finger on the co-worker’s forehead, and the co-worker hit Complainant. Witnesses concluded that Complainant was intimidating the co- worker. A notice, also dated December 25, 2016, indicates Complainant was placed on emergency placement in a non-duty non-pay status effective that day, based on actions which may be injurious to herself or others and in violation of the zero tolerance policy. A Notice of Removal, dated January 31, 2017, indicates Complainant was to be removed at the close of business on March 3, 2017. The Notice indicates that the removal was due to the December 25, 2016 incident and notes that Complainant started a verbal altercation with a co- worker and touched her forehead, escalating the matter to a physical confrontation. Complainant was charged with unacceptable conduct and a violation of the zero tolerance policy. The Notice cites several Agency standards of conduct, including one providing that employees are expected to maintain harmonious working relationships and not do anything that would contribute to an unpleasant working environment, as well as one indicating that there must be no tolerance of harassment, intimidation, threats, or bullying and violation of this policy may result in disciplinary action, including removal. 0120182266 3 On December 25, 2016, the co-worker also received an emergency placement in a non-duty non- pay status for actions which may be injurious to herself or others and in violation of the zero tolerance policy. A Notice of Removal, dated January 26, 2017 indicates that she was to be removed on March 3, 2017 due to the altercation on December 25, 2016. She was also charged with unacceptable conduct and violation of the zero tolerance policy. A memorandum from the Agency’s headquarters, dated February 6, 2016, regarding the zero tolerance policy, indicating that threats or assaults made directly or indirectly toward any employee or customer will not be tolerated. 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 (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on May 9, 2018. 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. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant asserts that there are comparators who were treated less harshly or not disciplined for engaging in the same behavior. She provides several witness statements as to these events, generally suggesting that other employees engaged in physical altercations and were not removed. She also reiterates her statement that she never punched the co-worker and asserts that she was a victim in the situation. In response, the Agency argues that, prior to the AJ’s issuance of a decision, Complainant and the Agency were given the opportunity to supplement the record with argument and evidence regarding the events at issue, including any alleged comparators. The AJ held a teleconference, during which Complainant confirmed that some of her comparators were contractors and worked in different positions than she and that she and the co-worker were both put on emergency placement and issued a notice of removal by the same manager. Complainant acknowledged that both women yelled at each other, made physical contact with each other’s faces, and ripped their clothes. Complainant was provided the opportunity to explain her information and legal theory, as well as ask questions of the Agency’s representative. The AJ appropriately concluded that Complainant and the co-worker violated the zero tolerance policy, due to their mutual physical altercation which led to their removal. Complainant cannot establish a prima facie case of discrimination and can point to no evidence that would establish pretext. The Agency asks that we affirm the AJ’s decision without a hearing and its final decision. 0120182266 4 ANALYSIS AND FINDINGS 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”). Complainant alleged that the Agency treated her disparately, including on the basis of pregnancy. The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (1978) (PDA) provides that discrimination on the basis of pregnancy constitutes sex discrimination under Title VII. Claims brought under the PDA are examined using the traditional disparate treatment analysis. See Bernardi v. USPS, EEOC Appeal No. 01954090 (August 21, 1997). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency’s management explained that Complainant engaged in an altercation that violated the Agency’s zero tolerance policy. While Complainant asserts that she did not hit or punch the co-worker, there is sufficient evidence to suggest that she touched the co-workers face and/or used intimidating or threatening language. The zero tolerance policy extends beyond physical confrontations and contemplates such actions as harassment, intimidation, threats, or bullying. We note that Complainant acknowledges that she participated in the altercation, including verbally confronting the co-worker. This is sufficient to violate the Agency’s standards of conduct and zero tolerance policy. Complainant’s argument that comparators were treated more favorably is not persuasive, as the people she identified as comparators were contractors, as opposed to Agency employees, or were otherwise not similarly situated. Therefore, we find that Complainant has not established by a preponderance of the evidence, that the legitimate, non- discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus. 0120182266 5 We also note that Complainant has alleged discrimination on the basis of pregnancy as a physical disability. Pregnancy, as a temporary condition, is not a disability as contemplated by the Rehabilitation Act. However, the Commission has recognized that there are circumstances under which complications from pregnancy can substantially limit a major life activity, and therefore rise to the level of a disability. See Stewart v. USPS, EEOC Request No. 05960071 (December 18, 1996). That said, the record does not suggest such circumstances in Complainant’s case. 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. 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. 0120182266 6 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 February 5, 2019 Date Copy with citationCopy as parenthetical citation