0120152180
07-19-2017
Mary S,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mary S,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120152180
Agency No. 1B061006914
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 17, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Hartford Processing and Distribution Center in Hartford Connecticut.
On October 24, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (African-American), national origin (Ghanaian) and color (Black) when, on May 12, 2014, she was put on Emergency Placement, Off-Duty Status without pay,2 and later on July 1, 2014, was issued a 14-Day Suspension for Unacceptable Conduct.3
The evidence gathered during the investigation into the complaint indicates that a male coworker of Complainant ("C1") complained to management that Complainant was sexually harassing him and wrote a statement outlining what occurred. He stated that on Friday, May 9, 2014, he was at a machine on the workroom floor when Complainant walked behind him, leaned into his right ear and said loudly, "How big is it? How big is it?" C1 stated that he was shocked and told Complainant to leave him alone. He stated that Complainant then walked about 20 feet away from him and dropped to one knee and made hand gestures as if she was giving oral sex.
The following Monday, May 12, 2014, Complainant arrived to work and was promptly escorted out by her first level supervisor ("S1"), who informed her that she was being placed on emergency off-duty status without pay while management investigated the sexual harassment complaint. Complainant was subsequently interviewed by management concerning the incident. During the interview with management, Complainant denied the harassment allegations, but admitted to sticking out her tongue to C1 and saying, "Hi Dennis, Hi Dennis."
On June 30, 2014, management issued Complainant a Notice of 14-Day Suspension, effective July 1, 2014. The letter of suspension indicated that management found C1's version of events to be credible, and charged Complainant with "unacceptable conduct" in violation of the Agency's "zero tolerance policy" for workplace harassment.
The record shows that Complainant later filed a grievance over the suspension. The grievance was settled and the suspension was reduced to a letter of warning with back pay for the time she was out on emergency suspension.
At the conclusion of the investigation into her EEO complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Per Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, management witnesses stated that Complainant was placed on emergency suspension and later issueda suspension because a male employee complained that she had sexually harassed him. An investigation was conducted, and pursuant to the Agency's "no tolerance policy" for workplace harassment, management indicted it imposed the disciplinary action. This is a sufficient articulation of legitimate, non-discriminatory reasons for the disputed actions.
As noted above, the burden now shifts to Complainant to prove, by a preponderance of the evidence, that management's actions in this matter were actually motivated by discrimination based on her race, color and/or national origin. Complainant has failed to meet this burden.
Complainant named several coworkers outside one or more of her protected classes who she claims violated various Agency policies, yet, unlike Complainant did not get suspended. However, it is well established that in order to be considered "similarly situated," the comparator employee and the complainant must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) additional citations omitted. For claims where the alleged discriminatory action is an agency's response to "problem conduct," where the proffered "comparator's conduct was materially distinguishable from that of complainant, he or she is not similarly situated" to the complainant. See Grappone; Complainant v. Dep't of the Treasury (IRS), EEOC Appeal No. 0120132983 (Jun. 10, 2015). Here, the Agency determined, and we agree, that none of Complainant's proffered comparators were "similarly situated" to Complainant. In addition to some variations in job titles and functions, unlike Complainant, none of the comparators were accused of sexual harassment or violating the Agency's anti-harassment policy. Moreover, Complainant has not proffered any additional evidence that the Agency acted with discriminatory motive.
Complainant also indicates that as part of its investigation into her purported harassment, management interviewed another coworker ("C2"), who was a witness to the May 9 incident. On September 5, 2014, Complainant learned from a union official that C2 had been found "not credible" during the investigation because she gave "conflicting statements" about the incident. Apparently C2 added additional allegations about the incident that C1 had not made in his May 9 statement to management. Complainant alleged that C2, who was white, was not disciplined for her false allegations, while she was. However, the record establishes that Complainant was issued disciplinary action based only on the statements of C1, not C2, and there was no determination that his statements lacked credibility.
In sum, we conclude that Complainant simply failed to meet her burden of proving that her race, color or national origin played a role in the disciplinary action issued. As such, the Agency's determination that no discrimination was established should be affirmed.
CONCLUSION
Having thoroughly reviewed the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination.
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
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.
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
July 19, 2017
__________________
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 The Agency dismissed the challenge to the May 2014 placement on off-duty status for untimely EEO counselor contact. However, since the placement in off-duty status and the subsequent suspension arise from the same factual incident, we will address them both together.
3 The Agency also dismissed a claim by Complainant that on or about September 5, 2014, she became aware that management did not discipline a co-worker who provided a false witness account of the incident that resulted in her suspension. To the extent that this matter was simply evidence in support of Complainant's discrimination claim concerning her suspension, it does not give rise to an independent claim. To the extent that Complainant is trying to raise a claim of retaliation for filing the instant complaint, Commission records indicate that this issue is currently pending before an EEOC Administrative Judge (EEOC Hearing No. 520201600337X) as part of a larger claim of ongoing retaliation brought by Complainant.
We note that in her affidavit given during the investigation, Complainant stated that "retaliation was not an issue in the 14-day suspension."
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