Shamika P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 22, 20160120140522 (E.E.O.C. Apr. 22, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shamika P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120140522 Hearing No. 540-2012-00232X Agency No. 4E-852-0027-12 DECISION The Commission accepts Complainant’s appeal from the September 16, 2013 final Agency decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster Relief/Replacement at the Agency’s Post Office in Navajo Dam, New Mexico. Complainant entered duty with the Agency on September 24, 2011. Complainant claims that, beginning with her orientation, she has not been properly trained to perform the duties of her position. Complainant alleges that when she began on-the-job training, the Officer-in-Charge (OIC) would not let her get her notebook, constantly yelled at her, and stood in her way every time she attempted to get her notebook. Further, Complainant claims that OIC humiliated her in front of customers, rolled her eyes when Complainant did not respond the way she wanted, and screamed at her on several occasions. 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. 0120140522 2 Additionally, Complainant alleges that from October 29, 2011 to November 26, 2011, OIC become more hateful and yelled constantly. Complainant alleges that OIC came in the office in the afternoons and went behind her saying that she did complete certain tasks. Complainant believes that OIC created a hostile work environment after Complainant contacted the Office of Inspector General to report illegal activities in the facility. On December 2, 2011, OIC called Complainant and told her to come to the Post Office. Complainant claims that OIC told her over the phone that she was firing her because Complainant went to a retired Agency employee’s house to complain about how OIC had trained her. OIC issued Complainant a Notice of Removal during Probationary Period on December 2, 2011. On March 26, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of age (46) and in reprisal for prior protected EEO activity2 when: 1. In September 2011, she was not properly trained to perform the requirement of her job position; 2. Beginning October 29 through November 26, 2011, her former Postmaster created a hostile work environment when she contacted the Office of Inspector General; and 3. On December 2, 2011, she was issued a Letter of Removal During Probationary Period for Failure to Meet the Duties and Responsibilities of Her Position. At the conclusion of the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).3 2 The Agency initially rejected reprisal as a basis of discrimination based on Complainant’s claim that she was subjected to retaliation due to whistleblowing activities. The AJ initially assigned to the matter granted Complainant’s motion to amend her complaint to include reprisal as a basis of discrimination. Despite the Agency’s subsequent failure to address this basis in its FAD, the Commission finds that the record is sufficiently developed for the Commission to address it in this decision. 3 On January 22, 2013, the AJ notified the parties that she would be granting the Agency’s motion for summary judgment and issuing a decision soon thereafter. Prior to the AJ’s issuance of a decision, Complainant withdrew her hearing request and requested that the Agency issue a FAD. On July 23, 2013, the AJ remanded the matter to the Agency for a FAD. 0120140522 3 In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Further, the Agency found that management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claim (1), OIC stated that Complainant received orientation in Albuquerque and in- house training to perform the duties of the position, that Complainant was properly trained, and that Complainant made notebooks for guidance. OIC further explained that she did not feel that Complainant was able to communicate with her and that Complainant was distracted the entire time she tried to train her. OIC agreed that she initially told Complainant that the orientation was only one day instead of two, but did so because she was given incorrect information and apologized to Complainant. OIC denied that she raised her voice to Complainant or rolled her eyes at her. The Post Office Operations Manager (M1) confirmed that Complainant was properly trained to perform the requirements of her position and that, while three days were normally allowed for training, she approved requests from OIC for more days to allow Complainant every opportunity. With respect to claim (2), OIC and M1 denied knowing that Complainant contacted the Office of Inspector General. The record shows that Complainant submitted an online report of possible whistleblower reprisal to the Office of Inspector General’s website on February 12, 2012, and the case was subsequently marked “Closed Investigation Unfounded” after an investigation. Finally, as to claim (3), OIC stated that she issued Complainant the Notice of Removal during her probationary period for her failure to meet the duties and responsibilities of the position. OIC affirmed that Complainant failed repeatedly to follow the procedures she was taught during her training such as locking the safe, facility doors, and parcel lockers and putting away the accountable items. OIC averred that even after holding a fact-finding meeting with Complainant on November 23, 2011, her failure to perform her duties continued. OIC stated that she called Complainant to tell her she was being removed because Complainant gave her an excuse each time she asked her to come to the Post Office to talk to her. OIC further asserted that she terminated Complainant over the phone because Complainant could not follow directions and she felt she could not trust her with the office. M1 added that she concurred with issuing the Notice of Removal and agreed that Complainant was not going to be able to stay employed due to performance. M1 noted that Complainant was given several training opportunities and failed to show improved performance. Based upon conversations with OIC, she agreed that Complainant did not satisfy the requirements of the position. The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. 0120140522 4 CONTENTIONS ON APPEAL On appeal, Complainant contends that Agency officials gave contradictory statements regarding her removal and training. Complainant states that her experience at the Agency caused her emotional distress including severe depression, stress, and sleeplessness. Complainant argues that if there was a problem with her performance, it would have been a reflection of the “harassment-based training” she received. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Hostile Work Environment To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or 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). Therefore, to prove her harassment claim, Complainant must establish that he 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 a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant chose to withdraw her request for a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on her protected classes, management subjected her to a hostile work environment based on several incidents where Agency officials took actions that seemed adverse or disruptive to her. The Commission concludes that the conduct alleged is insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, personality conflicts, and general workplace disputes and tribulations. For example, as to claim (1), OIC maintained that Complainant was properly trained to perform the duties of her position, including attending orientation; on-the-job training; and notebooks for guidance. 0120140522 5 ROI, at 251. OIC noted, however, that Complainant seemed distracted the entire time OIC tried to train her. Id. at 254. M1 added that she approved additional training for Complainant to assist her and her performance was discussed during several evaluations during her probationary period. Id. at 53, 288. Further, regarding claim (2), OIC and M1 denied knowing that Complainant contacted the Office of Inspector General while she was employed with the Agency. Id. at 254, 291. The Office of Inspector General’s report indicated that it had received an allegation from Complainant regarding an EEO complaint and it had closed the investigation as unfounded. Id. at 328. Finally, OIC stated that she issued Complainant the Notice of Removal during her probationary period because her performance was not improving despite additional training and counseling. Id. at 257, 262. OIC cited numerous instances where Complainant left the office unsecured, left accountable items out, failed to follow instructions. Id. at 344. M1 concurred with Complainant’s removal based on her failure to adequately perform the duties of her position. Id. at 292. Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence showing that the Agency's explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted 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 (M0815) 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 0120140522 6 must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 April 22, 2016 Date Copy with citationCopy as parenthetical citation