Michelle G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionJun 14, 20190120181763 (E.E.O.C. Jun. 14, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120181763 Agency No. 1C451007217 DECISION On May 4, 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 April 18, 2018, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, 04/P, at the Agency’s Processing and Distribution Center in Cincinnati, Ohio. On August 8, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (fibroids, menorrhagia, and dysmenorrhea), and age (over 40) when: 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. 0120181763 2 1) On April 26, 2017, she was informed that her days off would be changed, and thus her detail to the Quality of Work Life (QWL) office would be reduced from five days weekly to three days weekly; 2) On April 29, 2017, she was charged annual leave; 3) On dates to be specified after April 26, 2017, her requests for annual leave were denied; 4) On a date to be specified, management refused to allow her to attend a meeting; and 5) On or around June 13, 2017, management discussed her attendance at a meeting. Complainant subsequently amended her complaint on November 6, 2017, to include a claim of discrimination on the bases of race, sex, disability, age, and reprisal (instant EEO activity) when: 6) On or about October 14 and/or October 20, 2017, her request for annual leave on PS Form 3971 was changed to Family Medical Leave Act (FMLA) sick leave and FMLA annual leave. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant submitted no arguments on appeal. 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”). To establish a claim of hostile work environment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe 0120181763 3 and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). With regard to Complainant’s allegation that she was subjected to harassment, we will assume arguendo that the events occurred as Complainant described and were unwanted. However, we find that the Agency articulated legitimate, nondiscrimination reasons for the alleged incidents For claim (1), Complainant’s first line supervisor indicated that upper management changed Complainant’s schedule because the department was shorthanded and needed people back on the floor. The Manager of Distribution Operations added that changing Complainant’s off day schedule from Saturday/Sunday to Wednesday/Thursday would eliminate Complainant’s need to call in, as she usually called in during the week, and would save the Agency from paying her overtime on Saturday and Sunday (Complainant worked overtime on her off days). Regarding claim (2), Complainant’s first line supervisor explained that he covered for Complainant’s absence for the first week following the schedule change; however, Complainant continued to refuse to acknowledge that her off days had changed and did not show up for work on Saturday, April 29, 2017. He emphasized that he had to charge Complainant’s annual leave balance to prevent Complainant from being written up for an unexcused absence and placed on leave without pay. As for claim (3), Complainant’s first line supervisor explained that he was out of the office when he received a telephone call from another supervisor regarding Complainant’s leave request. Complainant’s first line supervisor indicated that he directed that supervisor to deny Complainant’s request because he was unaware what Complainant’s request was about. Complainant’s first line supervisor maintained that he ultimately approved the request and has never denied Complainant’s annual leave requests. For claim (4), although Complainant’s first line supervisor could not remember whether he was the management official who denied Complainant’s attendance at a meeting, he explained that there was a situation regarding Complainant’s decision to come in on her off days and no one was sure if that was correct. Complainant’s supervisor explained that he may have stopped one meeting until they ironed out the rotation dates. Regarding claim (5), the Manager of Distribution Operations explained that he made a comment during a meeting about the first aid kits not being stocked, which he indicated was not an issue before Complainant began calling in twice a week. The manager indicated that he told attendees at the meeting that he believed that the stocking problem would no longer be an issue due to Complainant’s new work schedule. As for claim (6), Complainant’s first line supervisor indicated that he was unaware that Complainant’s request for annual leave had been changed to FMLA sick and FLMA annual leave on October 14 and October 20, 2017. He speculated that the Supervisor of Distribution Operations 0120181763 4 wanted to “clear all the TACS” for the facility and may have incorrectly entered the wrong value under someone’s name. The Supervisor of Distribution Operations, however, denied that she changed Complainant’s requests for annual leave. Given the facts in this case, we agree with the Agency that the alleged instances of harassment did not have the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998) (holding that Title VII is not a civility code). We find that the preponderance of the evidence shows that the alleged instances of harassment involved ordinary workplace interactions between supervisors and their employees, rather than discrimination. We also find that there was no improper disclosure when management mentioned her attendance (without mentioning any aspect of her medical history), as the record clearly shows that management briefly mentioned Complainant in the content of addressing a particular problem with the stocking of first aid kits. Furthermore, to the extent that Complainant seeks relief for violations of the FMLA when management changed her schedule and/or discussed her attendance at a meeting, she fails to state a claim that the Commission can adjudicate. The EEOC has no jurisdiction over claims based on the FMLA. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral attack on the FMLA process, which is regulated by the Department of Labor, and outside the jurisdiction of the EEOC). Even if we treat claims (1), (2), (3), and (6) as discrete acts of discrimination, we still find no discrimination. We agree with the Agency that Complainant has not persuasively demonstrated pretext. For claim (1), while we acknowledge that Complainant alleged that management treated her less favorably than her colleagues, we find that the record clearly shows that Complainant’s named comparators were not similarly situated to her because they were either not on detail to the QWL office or were employed in different occupations. Moreover, we find that the preponderant evidence fails to demonstrate any causal link between the Agency’s actions and Complainant’s protected characteristics. As for claim (2), we find that that management did not act discriminatorily in deciding to charge Complainant’s annual leave balance for her absence rather than writing her up and putting her on leave without pay. Regarding claim (3), we agree with the Agency that Complainant did not sustain any adverse action when her supervisor initially denied her annual leave request. The record clearly shows that her supervisor ultimately granted her leave request and has never denied any of her requests for leave. Complainant has not shown that any delay in granting her leave request was due to discrimination. For claim (6), while we acknowledge that management may have incorrectly inputted Complainant’s leave requests, we agree with the Agency that the preponderant fails to show that 0120181763 5 management acted with discriminatory and/or retaliatory motive. We note that Complainant has not argued on appeal that her leave be changed. CONCLUSION We AFFIRM the Agency’s decision finding 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 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 0120181763 6 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: _________________________ Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 14, 2019 Date Copy with citationCopy as parenthetical citation