0120140742
07-08-2016
Selene M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Selene M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120140742
Agency No. 1J-630-0123-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 21, 2013 final decision concerning an 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
During the period at issue, Complainant worked as a City Carrier at the Agency's St. Louis, Missouri Post Office.
On September 4, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On October 19, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected activity when:
1. on unspecified dates, she was spoken to in an aggressive and degrading manner by management, which exhibited behavior that included demeaning facial expressions;
2. on unspecified dates, management has made inappropriate comments about her, and to her;
3. on August 20, 2012, she was informed her 204B detail was being terminated and she was to report to the Weathers Station;
4. on unspecified dates, she has been denied the opportunity to detail to other positions;
5. in or around August 2012, she was charged 32 hours of Leave Without Pay (LWOP), instead of being charged with annual leave;
6. on September 21, 2012, she was issued a Letter of Warning;
7. on unspecified dates, she applied for, but was not selected to, other positions within the Post Office;
8. on October 10, 2012, she was instructed that she had to have permission from management before leaving her case for any reason, which included talking to co-workers; and
9. on October 10, 2012, after an altercation with management, she was placed "off the clock."
After the investigation of the complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).2 Complainant initially requested a hearing. However, the AJ issued a document entitled "Order of Dismissal" dated September 12, 2013, 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 October 21, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency dismissed claims 3 and 7 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on September 4, 2012, which it found to be beyond the 45-day limitation period.
The Agency then nevertheless proceeded to address claims 1 - 9 (including claims 3 and 7) on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming arguendo Complainant established a prima face case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not 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, and 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. Regarding claim 1, the Manager stated that on October 10, 2012, she took Complainant in her office because Complainant did not follow proper Agency procedures. During the ensuing meeting in the office with Complainant, her union steward and the Acting Supervisor, the Manager stated that she explained to Complainant that she is expected to report to her assignment upon arrival and "that she cannot just leave her case to speak with a steward. She stated that she did not just leave her case and that she had asked the supervisor for a steward. This was not true because I was on the floor with the supervisor and observed [Complainant] when she reported to North County on 10/10/2012. She went right over and began talking to [union steward]." the manager office with her steward and Acting Supervisor for not following instructions.
Further, the Manager denied making degrading facial expression or speaking to Complainant in an aggressive manner. The Manager stated that Complainant "became irate and angry because she was addressed. She has a problem following instructions. I also expressed to her in the meeting that she had to follow the instructions of my supervisor ([Acting Supervisor]) and if she had problem with the instruction she could request to see a steward and document on the 3996 why she need to see the steward."
The Acting Supervisor stated that the Manager stated to Complainant "in a professional tone of voice with professional choice of words in regard to [Complainant] not following post office instructions, when someone is in need to talk to a shop steward, the rules apply... you have to ask management for approval not just take it upon yourself and walk to the stewards' case and start talking about her situation, or even in the middle of the workroom floor...[Manager] said, to [Complainant] about respecting management and following instructions. It doesn't matter who is Acting supervisor. [Complainant] flew off the handle and started yelling, pointing her finger in a loud voice, how she was a good carrier, she knows her job and how she is good at her job."
Further, the Acting Supervisor stated that because Complainant was loud, the Manager instructed her to return to work, but Complainant "stormed out of the office still yelling in a loud voice." The Acting Supervisor stated that Complainant then threw a 3996 on her desk and she informed Complainant that the form "doesn't belong there, and she came charging back to me and use[d] profane words with a loud voice...[Complainant] was so belligerent that [Manager] asked her to clock out and return to work tomorrow. After that [Complainant] just got outraged and was warned that the police was going to be called and then the police were called because she did not want to leave the building."
Regarding claim 2, the former Supervisor of Customer Service (former supervisor) stated that during the relevant period she was not aware of any "nasty comments or calls made to complainant."
Regarding claim 3, Complainant alleged that on August 20, 2012, she was informed her 204B detail was being terminated and she was to report to the Weathers Station. The former supervisor stated while she had no involvement concerning the termination of Complainant's detail, the Postmaster sent out an email "informing anyone from the St. Louis City area that was on a detail needed to return to their form 50 position. Complainant and myself were on a detail from St. Louis City, therefore both of us had to return to our Form 50 office. I was sent back on August 3, 2012, and began working at my form 50 station on August 6, 2012. Complainant is a carrier on her form 50 and was only in a detail position as an acting (204b) supervisor. Management has the right to terminate your detail for various reasons. 204b is not a guaranteed position."
Complainant asserted that a named male co-worker did not have a 204B assignment terminated. However, the former supervisor again stated that it is Agency management's decision "who acts and who does not. [Male co-worker] just happens to be in an area where he was working as an acting supervisor. He was needed in that capacity. Complainant was not needed at that station in that capacity; therefore you go back to your form 50 position until the need arises."
The Manager, Customer Services Operations stated that the Postmaster ended the details that were out of the city "due to the lack of resources needed to complete our day to day operations."
Regarding claim 4, the Manager, Customer Services Operations stated that during the relevant period, Complainant bid on a carrier's position "while in a detailed 204B position, which she would not be able to do. Since her [detail] ended 1 day short of the week, she was given the bid she requested." The Manager, Customer Services Operations further stated that Complainant "was not denied the opportunity to bid to North County, it was not a detail."
Regarding claim 5, the Manager, Customer Services Operations stated at that time, Complainant was charged with 32 hours of LWOP because she did not have any scheduled annual leave for 2012. Specifically, the Manager, Customer Services Operations stated that Complainant did not have approved annual leave from August 20, 2012 to August 25, 2012.
Further, the Manager, Customer Services Operations stated that generally, Carriers "select their vacation choices during the month of November and December prior to the new year...afterwards they are approved by seniority which is conducted [through] the union hall. [Complainant] did not select any vacation for the entire year of 2012. Therefore she would not be entitled to annual leave with an approved 3971 (request for leave)."
Regarding claim 6, the Manager stated that the Acting Supervisor issued Complainant a Letter of Warning for failure to follow instructions. Specifically, the Manager stated that Complainant "failed to work route in a satisfactory manner, and brought mail back to the station and had large variances of time that could not be accounted for on the route."
Regarding claim 7, the record reflects that Manager, Customer Services Operations, the Manager and Officer-in-Charge stated that they did not deny Complainant an opportunity to detail to other positions for which she applied.
Regarding claim 8, the Manager stated that on October 10, 2012, Complainant was instructed to obtain permission before leaving her case to talk with co-workers because she is required to stay at her case and perform her duties as a City Carrier. The Manager further stated that Complainant "was taken into the office with shop steward and instructed on the procedures per the M-41/M-39."3
Regarding claim 9, the Manager stated that on October 10, 2012, Complainant was not placed "off the clock," and that she instructed Complainant "to leave the premises and return back next scheduled day because she was irate, loud, and combative." The Manager stated that Complainant was "non-scheduled the next day 10/11/12 and called in for leave the day after, and did not report back to work until after I left North County." The Manager stated that Complainant did not report to North County facility until around November 9, 2012 and "since then she [bid] to another facility."
Complainant had asserted that when she was placed "off the clock." she was attacked by the Acting Supervisor while the Manager watched the incident. However, the Manager denied this assertion. Specifically, the Manager stated that Complainant "was not struck for anyone and I turned and [had] seen the complainant pointing her finger in [Acting Supervisor's] face and I instructed her to leave the premises and report back next scheduled day. She stated to me she was not leaving, I [called] the local police. By the time they got to North County, she had left. Before she left she went to the lunch area accomplished by [union steward] and [union steward]. I instructed them to return to their case and again instructed her to leave the premises."
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 basis -- in this case, 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 prior protected activity.
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.4
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
July 8, 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 The record reflects that despite a request by the EEO investigator, Complainant failed to respond fully to the questions presented during the investigation of her complaint.
3 M-39 and M-41 are abbreviations for Handbook M-39 "Management of Delivery Services" and M-41 "Carriers Duties and Responsibilities."
4 Because we affirm the Agency's finding of no discrimination concerning claims 3 and 7 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact).
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