0120102272
10-15-2010
Angela Fabbrini, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Angela Fabbrini,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120102272
Hearing Nos. 530-2008-00314X and 530-2008-00405X
Agency Nos. 4C-150-0030-07 and 4C-150-0017-08
DECISION
On April 29, 2010, Complainant filed an appeal from the Agency's March 29, 2010, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports the EEOC Administrative Judge's (AJ) finding that Complainant was not subjected to reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the New Brighton, Pennsylvania Post Office.
On March 30, 2007 and January 12, 2008, Complainant filed EEO complaints alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. On or about February 6, 2007, Complainant was issued a Notice of Proposed Removal, and on March 13, 2007 and on other dates, she experienced payroll problems;
2. Since October 29, 2007, Complainant was subjected to retaliatory harassment that included the denial of leave; verbal abuse; denial of pay advances; denial of medical attention; denial of sick leave documentation; disciplinary interviews; and being placed off duty on December 4, 2007.
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 AJ. Complainant timely requested a hearing, and the AJ held a hearing on November 27, 2008 and December 6, 2009. On March 16, 2010, the AJ issued a decision in which she found that Complainant was not subjected to unlawful discrimination. Specifically, the AJ found that although Complainant established a prima facie case of reprisal, she failed to prove that the Agency's articulated reasons for its actions were pretext for reprisal. The AJ further found that the alleged actions were not sufficiently severe or pervasive to constitute a hostile work environment. The Agency subsequently issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the AJ improperly found that she was not subjected to reprisal. Complainant contended that on January 18, 2007, the Supervisor instructed her to "pivot from her assignment" to work on Rural Route 2. Complainant's Brief, p. 3. Complainant further stated that the Supervisor told her that it was an emergency situation, but she "declined" the order, which resulted in the issuance of the notice of proposed removal. Complainant argued that "scheduling problems do not constitute an 'emergency' situation" under the collective bargaining agreement because there were two carriers available to assist with the route that day. Brief, p. 4.
Complainant further contended that although the Supervisor claimed that he was not trained on rural carrier timekeeping and made payroll errors, the Supervisor had been supervising rural carriers since 2003. Complainant further contended that the Supervisor's denial that she did not tell her that "at least I didn't cause anyone to die" in reference to her deceased husband is not credible. Complainant further maintained that her comment to a co-worker that she should not be working on her knees was innocuous, not sexual harassment.
Complainant further maintained that on November 15, 2007, she asked the Postmaster to take her to the hospital, but he told her to leave his office and sit in a conference room. She further stated that she drove herself to the emergency room, where she was treated for anxiety and elevated blood pressure. Complainant also stated that although the Agency maintained that her sick leave documentation was inadequate because it did not indicate if she actually went to the physician, there is no Agency policy that requires employees to provide proof that they went to a physician. Complainant further maintained that she was subjected to more pre-disciplinary interviews than other employees, although such interviews are not considered discipline. The Agency requested that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Disparate Treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Once complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks. 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711.715-716 (1983).
In this case, the record reveals that Complainant filed an EEO complaint that was settled by a February 2006 settlement agreement. Management officials were aware of her EEO activity because Complainant referenced the terms of her EEO settlement agreement when she refused to obey management's order to cover a co-worker's route on or about January 18, 2007. Moreover, Complainant's Supervisor stated that he was aware of Complainant's previous EEO activity during the relevant time period. We find that Complainant was subjected to actions that are reasonably likely to deter employees from engaging in EEO activity, including a notice of removal, denial of leave, denial of pay advances, pay problems, disciplinary interviews, and being placed off duty. Further, we find that there was a temporal nexus between her protected activity and the alleged actions. Consequently, we find that Complainant established a prima facie of reprisal.
The Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, with respect to Complainant's notice of proposed removal, management stated that Complainant was issued the notice because she refused to obey management's repeated directive to deliver mail on a co-worker's route during an emergency situation.1 The Postmaster noted that Complainant was previously issued two letters of warning and a 10-day suspension for similar conduct. Management further stated that errors were made in paying Complainant because a Supervisor had not received sufficient training on rural carrier pay, but the errors were corrected in early 2007. Management further noted that other carriers also experienced problems with their pay.
Management also stated that Complainant's request for annual leave was denied because there were no replacement carriers available on some of the dates leave was requested, and on another occasion, Complainant submitted a document from a physician that had the incorrect date. The Postmaster further stated that he denied Complainant's request for Leave without Pay because she had annual leave available. Additionally, the Postmaster stated that Complainant was not denied a pay advance, but her Supervisor completed the wrong form for the advance. He stated that the error was corrected, but Complainant refused to sign the corrected form.
The Supervisor stated that contrary to Complainant's allegation, she never told Complainant, "at least I never caused anyone to die." Instead, she stated that she told Complainant, "how come you lie?" The Postmaster stated that he offered to call an ambulance for Complainant on November 15, 2007, and the Supervisor offered to take her to the hospital, but Complainant declined the offers.
The Postmaster stated that he instructed the Supervisor to escort Complainant out of the building on December 4, 2007, because a co-worker reported that Complainant made a sexually harassing comment to her. He stated that the comment violated the Agency's Zero Tolerance Policy toward harassment, and he held a pre-disciplinary interview with Complainant regarding the incident.
On appeal, Complainant argued that she refused to obey the direct order because the order violated the terms of the settlement agreement and a collective bargaining agreement. However, we agree with the AJ's determination that Complainant's interpretation of the settlement and collective bargaining agreements did not preclude her from obeying management's direct orders. In fact, we note that one way Complainant could have challenge management's orders was to allege breach of the agreement to the EEO Director, in accordance with 29 C.F.R. � 1614.504(a). The record reveals that, on April 4, 2007, Complainant entered into a grievance agreement with the Agency that provided that Complainant agreed that employees must obey the instructions of supervisors, and if there is a dispute regarding the propriety of an order, employees must carry out the order, but may immediately file a protest in writing to the official in charge of the installation or appeal through official channels.2 Exhibit 15.
Further, we do not find that Complainant's contention that the Supervisor had supervised rural carriers since 2003, undermined management's contention that he had been inadequately trained in payroll issues. Moreover, as noted by the AJ, testimony established that payroll errors were also made with respect to other employees. Complainant argued that there was no Agency policy that required employees requesting sick leave for a doctor's appointment to provide documentation verifying that they actually went to the physician, but we do not find this requirement unreasonable, suspicious or discriminatory on its face.
Regarding the Agency's reaction to Complainant's purported harassing comment to an employee, we do not find the Agency's response to be unreasonable in light of the alleged victim's insistence that Complainant harassed her by making sexually suggestive comments and the Agency's affirmative obligation to promptly and effectively respond to reported sexual harassment.3 Finally, Complainant contends that she was subjected to more pre-disciplinary interviews than other employees, but she has not shown that any co-workers engaged in the type of conduct that was cited as the basis for her pre-disciplinary interviews.
Consequently, we find that substantial evidence supports the AJ's conclusion that Complainant failed to prove that any of the Agency's explanations were a pretext for reprisal. Therefore, we find that the AJ properly found that Complainant was not subjected to disparate treatment because of her previous EEO activity.
Hostile Work Environment
Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, we find under the standards set forth in Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A finding that Complainant was subjected to a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the agency were motivated by reprisal. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, the Commission AFFIRMS the agency's final order for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/15/10________________
Date
1 The record reveals that Complainant grieved the removal through a union, which resulted in a settlement agreement on April 9, 2009, that reduced the removal to a longterm suspension without pay.
2 The agreement reflects the terms of Employee and Labor Relations Manual Section 665.13.
3 See Rogers v. Department of Defense, EEOC Request NO. 05940157 (February 24, 1995)(Commission found that a claim which arose from the agency's investigation of a complaint of harassment, failed to state a claim, since the agency was legally obligated to investigate a complaint of harassment).
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0120102272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102272