Soila R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 10, 20190120182552 (E.E.O.C. Oct. 10, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Soila R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120182552 Hearing No. 461-2018-00033X Agency No. 4G-770-0068-17 DECISION On July 18, 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 June 28, 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. 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. ISSUE PRESENTED The issue presented herein is whether Complainant established that she was subjected to unlawful discrimination and retaliatory harassment as alleged in her formal complaint. 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. 0120182552 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s River Oaks Station in Houston, Texas. On March 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her: 1. On the bases of national origin (Hispanic), sex (female), and age (55) when: a. Beginning on December 15, 2016, Complainant was the only employee given the instructions to remain at a carrier case and not to touch Delivery Point Sequence (DPS) mail. b. During the month of December 2016, Complainant was not allowed to report to work early. 2. In reprisal for prior protected EEO activity under Title VII and the Age Discrimination in Employment Act when: a. Beginning on or about March 2, 2017, her manager continues to follow her on the street conducting street observations. b. Beginning on or about March 2, 2017, management continued to deny her PS Form 3996s. c. Beginning on or about March 2, 2017, her requests for Leave Without Pay (LWOP) under the Family Medical Leave Act (FMLA) were changed to sick leave or 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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. CONTENTIONS ON APPEAL Complainant filed the instant appeal without specific comment. The Agency responded to Complainant’s appeal. The Agency asserted that its final decision was appropriate. The Agency argued that Complainant failed to provide sufficient evidence to establish her prima facie case of disparate treatment, unlawful retaliation, or hostile work environment. Further, the Agency stated that Complainant provided nothing to support her allegations of discrimination beyond her belief that the actions occurred because she is a 0120182552 3 Hispanic female over the age of 40. Therefore, the Agency urged the Commission to affirm its final decision. 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 (EEO MD-110), 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”). Disparate Treatment – Claim 1 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). In claim 1, Complainant alleged that the Agency subjected her to disparate treatment based on her national origin, sex, and age when she was given an instruction to remain at her case and not to touch her DPS mail and when she was not allowed to report to work early in the month of December 2016. As to the instruction, Complainant’s supervisor (Supervisor) averred that on 0120182552 4 one occasion, she gave Complainant the instruction to stay in her case because within a span of an hour, Complainant would get very little of her mail cased. She indicated that Complainant would be constantly walking away from her case. As such, the Supervisor ordered her to stay at her case. Further, she also noted that carriers are not supposed to touch their DPS until their routes are cased up and taken down to deliver. She noted that DPS is a street function and should not be done on office time. Therefore, again, the Supervisor indicated that Complainant did not get her mail cased during office time and should not touch the DPS until she was ready to deliver. As for Complainant’s request to report early, the Supervisor stated that carriers could come in early if they are on the overtime list. She noted that she did not recall Complainant asking to come in early because that is not the process for coming in early. The Supervisor averred that if a carrier needed to adjust their schedule in any way, they would have to fill out a form and have a union official sign it. As Complainant did not make such a request and was not on the Overtime list, she would not have been able to report early. The Manager supported the Supervisor’s testimony, stating that Complainant did not make a request to arrive at work early. She also indicated that Complainant had made management aware that she could only work eight hours per day. Based on the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. However, we find that Complainant has failed to do so. Accordingly, we conclude that Complainant failed to show that she was subjected to disparate treatment based on her national origin, sex, or age. Retaliatory Harassment – Claim 2 It is well-settled that harassment based on an individual’s protected EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the harassment complained of was based on prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Complainant asserted that based on the instant EEO matter, she was subjected to retaliatory harassment. In support of her claim, she alleged that the Supervisor followed her on the street conducting street observations; she was denied her PS Form 3996s; and she was charged sick and annual leave when she had requested FMLA LWOP. As to the street observations, the record indicated that the Supervisor did not conduct observations on Complainant. Instead, the record demonstrated that another supervisor (Acting Supervisor) conducted an observation and that it occurred only once. Complainant indicated that she was denied her requests for auxiliary 0120182552 5 help which she requested by using the PS Form 3996. She noted that her route has high volume and needed assistance. As for the 3996 forms, the Manager averred that Complainant submits them every day and that they are approved or denied based on the mail volume for each particular day. According to a review of the Form 3996s provided in the record for after June 1, 2017, it appears that most of the requests were approved for those carriers that made requests, including Complainant and her coworkers. Finally, as to Complainant’s claim that she was denied FMLA leave,2 she alleged that the Agency charged her with leave instead of providing her LWOP. The Supervisor averred that that even under FMLA, Complainant still needed to be charged with leave in order to be paid. Upon review of the events alleged by Complainant in support of her claim of retaliatory harassment, we find that Complainant has not shown that the alleged events occurred because of protected EEO activity. Furthermore, taking the events as a whole, we cannot find that the alleged incidents were severe or pervasive enough to create a hostile work environment. Therefore, we conclude that Complainant has not established a prima facie case of retaliatory harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that she was discriminated against as alleged. 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. 2We note that, to the extent Complainant claim alleges a violation of FMLA, we find that such a claim constitutes a collateral attack and is dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. The proper forum for Complainant to challenge the Agency’s application of FMLA is with the Department of Labor, not the EEOC. 0120182552 6 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 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 0120182552 7 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 10, 2019 Date Copy with citationCopy as parenthetical citation