Aida E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionJul 26, 2017
0120151394 (E.E.O.C. Jul. 26, 2017)

0120151394

07-26-2017

Aida E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Aida E.,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Appeal No. 0120151394

Agency No. 4C-150-0048-14

DECISION

On March 5, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 25, 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., 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 which found that Complainant did not demonstrate that she was subjected to discrimination and/or harassment.

ISSUE PRESENTED

The issue presented in this case is whether Complainant was subjected to discrimination and harassment while interacting with her Postmaster (S1) and while performing the duties of her position.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales Services/Distribution Associate at the Agency's Mount Morris Post Office in Mount Morris, Pennsylvania. On August 5, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of age (44) and reprisal for prior protected EEO activity since November 2013 and ongoing when:

3) Between November 2013 and March 2014, a customer tried to touch her on four occasions and called her names and used vulgar language, and management did nothing;

4) Between January and May 2014, she was denied upward mobility when her supervisor, S1, denied her detail opportunities as Officer in Charge (OIC), rural mail count, and on-the-job clerk training;

5) On April 3, 2014, S1 gave her the "I don't like you" speech;

6) On April 17, 2014, S1 belittled her in front of customers;

7) S1 got upset when she enjoyed herself at work and discouraged her from having friendships with co-workers or customers;

8) S1 filed a harassment claim against her and included items from her Facebook page;

9) S1 nitpicked at every detail of her work;

10) S1 denied her pay adjustments for pay period 9 week 2, and pay period 10 week 1;

11) On two occasions, S1 gave desserts intended for her and coworkers to the HCR carrier;

12) The HCR carrier made an offensive remark to S1 that was loud enough to be heard by co-workers and customers and S1 did nothing;

13) S1 collected statements against her from co-workers and other postal employees;

14) On or around May 19, 2014, she was issued a Notice of Suspension of 7 Days or Less for Improper Conduct;

15) On August 1, 2014, she was issued a Notice of Suspension of 7 Days or Less for Unsatisfactory Performance;

16) S1 tried to force her to give her password to the Venetia Postmaster; and

17) S1 yelled at her about a customer's parcel that she hadn't scanned.2

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. Complainant did not request either a hearing or a FAD so 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 or harassment as alleged.

CONTENTIONS ON APPEAL

Complainant did not submit a brief and made no contentions on appeal. The Agency also did not submit a brief.

ANALYSIS AND FINDINGS

Standard of Review

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").

Disparate Treatment

Based on a thorough review of the record, we conclude that assuming, arguendo, that Complainant established a prima facie case of age discrimination and reprisal, the Agency articulated legitimate nondiscriminatory reasons for its actions namely, that with regard to claim 4, S1 stated that there were no OIC opportunities that Complainant was denied between January and May 2014. As for the Rural Mail Count, S1 stated that she was contacted in February of 2014 and asked if Complainant could assist with the Rural Mail Count, but since S1 was also doing the count in Mount Morris, she needed Complainant to assist her. Likewise, with respect to the OJI request, S1 stated that she did not deny Complainant the opportunity to provide window training as an OJl. She maintained that she replied to the request Complainant as an OJI by explaining what her work schedule was and advising that as far as she was concerned Complainant was available.

With regard to claim 10, management explained that Complainant was in fact paid correctly because she clocked in early and clocked out early without permission.

With respect to claim 14, Complainant was issued a Notice of Suspension because S1 indicated that she was insubordinate and had a problem with taking directions from S1 and wanted to do things the way that she wanted to do them.

Regarding claim 15, Complainant was issued a suspension because she failed to make the "stop the clock" scan on a package that was delivered to the Post Office.

With respect to claim 16, S1 indicated that Complainant was asked for her password because she had made a mistake while helping out at another post office and they were attempting to correct the mistake without having Complainant drive back to the other office.

We find that Complainant did not demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved in any of these incidents. As such, Complainant has not demonstrated that she was subjected to discrimination based on her protected bases.

Hostile work environment

At the outset, we find that with regard to claims 4, 10, 14, 15 and 16, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination above that Complainant did not establish that the Agency's actions set forth in these incidents were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Harassment of an employee that would not occur but for the employee's race, color, sex, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance No., on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) that 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).

With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. By way of contrast, in the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.

With regard to Complainant's claim of hostile work environment, we make the following determination, the preponderance of the evidence and the totality of the circumstances do not indicate that Complainant established her claim that she was subjected to a hostile work environment based on age or reprisal.

I. Elements 1, 2, and 3 - Unwelcome Conduct based on age and reprisal

Regarding element 1, the record is undisputed that Complainant is a member of statutorily protected classes. Regarding elements 2 and 3, however, we find that the record does not indicate that Complainant was subjected to harassment in the form of unwelcome verbal or physical conduct involving her age and previous EEO activity. We specifically note here claim 3, S1 reported the customer's rude actions toward Complainant to the Postal Inspection Service as soon as Complainant reported the incident. An Inspector spoke with the customer who maintained that he had not attempted to touch Complainant. Nevertheless, the customer was instructed that his behavior was not acceptable. There is no persuasive evidence that discriminatory animus played a role in the customer's actions or the Agency's response.

II. Element 4 - Unwelcome Conduct Sufficiently Severe or Pervasive

Regarding element 4, in determining whether an objectively hostile or abusive environment existed, the trier of fact should consider whether a reasonable person in the Complainant's circumstances would have found the alleged behavior to be hostile or abusive. Harris, 510 U.S. at 21. Also, the trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

In the instant case, we find that Complainant's allegations do not rise to the level of a hostile environment based on discrimination due to Complainant's age or previous EEO activity. Regarding claim 5, S1 denied ever telling Complainant that she did not like her although it could have occurred. S1 indicated that Complainant called her pathetic and had little respect for her. In claim 6, S1 also denied admonishing Complainant in front of anyone. Further, with regard to claim 7, S1 indicated that she did not either encourage or discourage friendships in the office. She maintained that she just wanted to make sure that customers received the quality of service that they deserved. With respect to claim 8, S1 acknowledged that she did file a harassment complaint against Complainant because she was often openly hostile towards her. Regarding claim 9, S1 explained that she did not nitpick Complainant but expected her to do the work she was instructed to do. S1 also indicated that with regard to claim 11, she put desserts out for everyone not just Complainant. Regarding claim 12, S1 indicated that she spoke quietly to the carrier that Complainant complained about. S1 explained that she did not publically admonish her carriers but she did talk to the carrier about his inappropriate comment. Regarding claim 13, Complainant indicated that during a pre-disciplinary meeting with S2, he presented her with written statements from other employees. Although Complainant believed that S1 collected the statements, S1 denied doing so.

Finally, regarding claim 17, the record indicates that this matter was related to claim 6. Complainant felt that a package had a street address and should have been given to a carrier for delivery. S1, however, thought that the package had accidently been designated for delivery. She had earlier told Complainant to scan the package and to leave a note in the customer's post office box that there as package to pick up. When S1 noticed that Complainant had not complied with her instructions, and that the package was still in the case for delivery, she told Complainant to do what she had told her earlier.

We find that Complainant presented no persuasive evidence that she was subjected to a hostile work environment due to her age or previous EEO activity. We find that the incidents raised by Complainant, even if they occurred as alleged, were neither severe nor pervasive and were more in the nature of common work-place interactions and disagreements over supervisory instructions.

CONCLUSION

Accordingly, we AFFIRM the Agency's final decision.

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 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

_7/26/17_________________

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 Claims 1 and 2 were dismissed prior to the issuance of the FAD. Complainant does not dispute their dismissal. As such, the claims will not be addressed in this decision.

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0120151394