0120160144
10-04-2016
Marjorie C.,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
Marjorie C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120160144
Agency No. 4K-230-0127-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 21, 2015 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 Postal Support Employee (PSE)/Transitional Employee (TE) at the Agency's Norfolk, Virginia Oceanview Station.
On September 25, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, sex, and in reprisal for prior EEO activity when:
1. on various dates in 2011, management invaded her personal space, made negative comments about her, treated her differently than another employee when she broke a vehicle mirror, and accused her of spraying a man, his dog and his mail;
2. on October 10, 2011, January 3 and 7, 2012, May 29, 2012, and June 12, 2012, she was instructed to take more weekly circulars and marriage mail2 than other carriers in the station resulting in additional street or office time;
3. on October 13 and 14, 2011, February 4, 2012, and April 25, 2012, when she called in from the street, management made comments they could not do anything for her, "make it back or else," "it's out of their hands," "bye bye," and hung up the telephone;
4. on March 16, 2012, management brought a customer to her vehicle who earlier threatened to "beat her behind;"
5. on November 14, 2011, January 7, 2012, May 9 and 22, 2012, and June 1 and 6, 2012, she was not given sufficient time to complete her assignments;
6. on January 6 and 7, 2012, and February 8, 2012, she was compared to other employees;
7. on January 7, 21 and 23, 2012, she was denied copies of her requested 3996 but another carrier requested his and it was provided;
8. on January 24 and 28, 2012, February 8 and 10, 2012, and May 18 and 19, 2012, she was given contradicting and unclear instructions;
9. on January 30, 2012, May 22, 2012, and June 9 and 13, 2012, management intimidated her as she filled out 3996 forms;
10. on February 4, 9, 11, 14 and 16, 2012, she was switched around to various routes, and she requested, but was not given specific leave times in order to accomplish the daily goals, and in a subsequent PDI management's response to her request to her leave time was, "what do I have to do, do you need to see your leave times everyday?;"
11. during the weeks of February 11, 2012, March 31, 2012, April 7, 2012 and June 2, 2012, she was called in later to work;
12. on February 29, 2012, she faxed her uniform order, she was notified on March 27, 2012, that payment was incomplete, and she informed management who responded that they were working on it. On July 11, 2012, management informed her that the order had expired and she should have used the uniform company that the other two Transitional employees used;
13. on March 14, 2012, she was told to skip her lunch break if she was going to be short on time;
14. on April 24 and 25, 2012, May 14, 15, and 21, 2012, she was instructed to case and carry more mail than other Letter Carriers;
15. on April 26, 2012 and June 1, 2012, she was blamed for Route 304 mistakes that she did not make and on May 29, 2012, she was threatened with termination in front of other employees;
16. on May 2 and 26, 2012, she was scolded;
17. on unspecified dates up to August 1, 2012, she was not allowed to give some biweekly Customer Connect Service Talks;
18. on May 24, 2012, she received a Pre-Disciplinary Interview (PDI), and subsequently on June 9, 12, 13, 15 and 16, 2012, she was not allowed to get gas;
19. on May 24, 2012, she was issued a Letter of Warning for Unsatisfactory Performance;
20. on May 25, 2012, management stated that they would have to get more aggressive with her;
21. on June 7, 2012, she was issued a 7-Day Suspension for Unsatisfactory Performance which was subsequently withdrawn;
22. on June 19, 2012, she completed a 3996 requesting 1.5 hours of extra time before break, management stopped her from taking her break at 8:30 a.m. to discuss the 3993, and only approved 30 minutes;
23. on June 19, 2012, when she called the station to inform management that she did not think she would be back by 1700, she was accused of wanting to abandon the mail and told if she ever brings mail back she would be issued a Letter of Removal;
24. on August 1, 2012, she was fired, subsequently, she was rehired and placed in an "On Call" status;
25. on various dates she was sent to other stations before the other two Transitional employees who were only sent to other stations once, and she is currently being denied work in Norfolk, Virginia;
26. on various dates, she used her personal vehicle to drive to other stations and was not compensated;
27. on September 13, 2012, she was issued a Letter of Removal and during May, June and July 2012, she was denied leave;
28. during May, June, July and August 2012, she was mocked, ridiculed, demeaned, intimidated by and received gestures from management;
29. on June 16, 21, 27 and 30, 2012, July 5, 10-14, 21, 23 and 24, 2012, and August 1, 20122, she was given insufficient time to complete her assignments;
30. within the period of June 25, 2012 to August 3, 2012, she was called in later than other employees;
31. on June 26, 2012 and within the period of July 9-21, 2012, she was subjected to street observations more than other employees;
32. during July 2012, she was placed on-call several times;
33. on July 2 and 3, 2012, she was treated differently than other employees regarding forms, office assignment, casing assignment, and instructions;
34. on July 5 and 13, 2012, and August 1 and 27, 2012, she was given Pre-Disciplinary Interviews;
35. on July 10 and 11, 2012, she was singled out and sent to other stations before other employees, and was denied a postal vehicle and told to find a way home;
36. on unspecified dates and on July 12, 2012, her manager and supervisor have gossiped and spread rumors about her;
37. on July 12, 20 and 25, 2012, she was yelled at, cursed at and/or threatened with termination by management;
38. on September 6, 2012, management mailed checks that had been withheld from August 2012;
39. on unspecified dates, management stated that she incurred customer complaints and expanded her street time;
40. on unspecified dates, she has been constantly compared to other employees; and
41. during 2012, she did not receive her uniforms.3
After the investigation of the complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, the AJ issued a document entitled "Dismissal of Hearing Request" dated July 13, 2015, dismissing Complainant's hearing request, finding that Complainant had not complied with the AJ's orders. Consequently, the Agency issued the instant final decision on August 21, 2015, pursuant to 29 C.F.R. � 1614.110(b).
In its August 21, 2015 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex, and reprisal discrimination. The Agency further found that assuming arguendo Complainant established a prima face case of race, sex, and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex, and retaliation. Specifically, 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, she 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. The Supervisor Customer Service, also Complainant's supervisor, stated that during the relevant period Complainant was a Transitional Employee (TE) and "TE's do not have all the rights afforded regular employees. They don't have the luxury of choice assignments or set daily schedules. They are not guaranteed any certain amount of hours per week. Although this may be unfortunate, the role of TE's are clearly defined. [Complainant] demonstrated resistance to instructions given by her supervisor and clearly felt challenged when questioned by superiors or customers. Numerous discussions were held with [Complainant] in an attempt to correct her performance."
The supervisor acknowledged that Complainant may have been subjected to more street observations than other employees "due to her calling back to the station almost daily to inform management she would be back late. She would call back almost daily regardless which route she was assigned." The supervisor stated that in regard to Complainant's allegation that on August 1, 2012, she was fired and placed on "On Call" status, it was his knowledge that Complainant was not fired and that she was taken off the rolls in error.
Regarding Complainant's allegation that she was given contradicting and unclear instructions, the supervisor denied the assertion. The supervisor stated "they may not be the instructions [Complainant] wants, but they are clear."
Regarding Complainant's allegation that she was denied leave in May, June and July 2012, the supervisor stated that regular carriers "are on prim leave during this time. TE's are not allowed to take leave. Only in emergencies."
Regarding Complainant's allegation that she was denied overtime, the supervisor stated that "amount of overtime is not always approved." The supervisor stated that he denied Complainant 1.5 hours of overtime on June 19, 2012 because "mail volume and availability of mail did not support 1.5 hours of overtime." The supervisor stated that in June 2012, he issued Complainant a 7-Day Suspension because of her continued use of unauthorized overtime. Moreover, the supervisor stated that on September 13, 2012, he issued Complainant a Letter of Removal after consultation with Labor Relations and upper management. The supervisor stated that Complainant was issued the subject letter because she "demonstrated a pattern of unauthorized overtime and poor performance."
Regarding Complainant's harassment claim, the supervisor denied subjecting her to harassment and a hostile work environment. The supervisor stated as a Defense Equal Opportunity Management Institute trained supervisor, "I [find] the allegations of discriminatory harassment of any kind offensive if not ridiculous. I regret Postal policy could not satisfy the needs of [Complainant]."
The Manager, Customer Services stated "as a former Business Solutions Specialist, I gave the service talks and brought my knowledge to the Customer Connect Program. It was not personal when the complainant did not give the service talks, craft employees are not guaranteed to give service talks." With respect to the uniform issue, each TE "could use a vendor of his/her choice. Then management would pay the bill. Complainant picked a vendor that was out of state who had problems with completing the order. I was not responsible for holding up the complainant's receipt of uniforms."
Regarding Complainant's allegation that she was told to skip lunch if she was going to be short on time, the manager stated "if TE employees report late, they may not be entitled to a lunch." The Manager further stated that Complainant was not mocked, ridiculed, demeaned, intimidated by or received gestures from Agency management.
Furthermore, the Manager stated that TEs "report to work based on staffing and workload. So, if management schedules them to report later in the morning, a TE employee should comply and report to work as scheduled. The complainant did not want to report to work later in the morning and did not want to work on different routes...I treated the complainant the same as I treated all TE letter carriers under my supervision. I refused to allow her special treatment that she was given by previous management at Oceanview. The complainant did not want to follow instructions and adhere to the terms that TE employees are hired. The [discipline] issued to the complainant was warranted. The complainant worked unauthorized overtime and failed to discharge her duties conscientiously and effectively. The complainant refused to correct her performance and she was issued a letter of removal for just cause."
The Postmaster stated that as a TE, Complainant "is only guaranteed work when she reports to work and that's four hours of work." The Postmaster further stated that Complainant was sent to other stations because she is a TE and "she is required to go where she is needed. Sometimes, TE's use their own vehicle or can use the LLV (long life vehicle) if it is available and offered to the TE." Moreover, the Postmaster stated that the removal was issued to Complainant "strictly based on her numerous performance issues. There was no harassment or discrimination - when management tried to direct her and guide her, she was obstinate and unresponsive."
Regarding Complainant's harassment allegation, the Postmaster stated that during the relevant period Complainant never filed any harassment claim and "she also did not inform management on any hostile work environment issues."
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).
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases -- in this case, race, sex, and retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her race, sex, and retaliation.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
October 4, 2016
__________________
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.
2 A fair reading of the record reflects that the term "marriage mail" addresses multiple mailings sent out to Postal customers, under one single cover.
3 The record reflects that claims 27 - 41 were later amended to the instant formal complaint.
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