0120150393
07-26-2017
Claudia A.,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
Claudia A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150393
Agency No. 4J-481-0090-14
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 10, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency discriminated against Complainant on the basis of race when it denied her a detail opportunity; and (2) whether the Agency discriminated against Complainant on the basis of race and in reprisal for protected EEO activity when her manager allegedly made intimidating statements to her.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Customer Services (SCS), EAS-17, at the Agency's Birmingham Post Office in Birmingham, Michigan. In a formal EEO complaint filed on June 3, 2014, Complainant alleged that the Agency discriminated against her on the basis of race (African American) when, since February 2014, the Agency denied her a detail opportunity. She subsequently alleged that the Agency discriminated against her based on race and in reprisal for the current EEO complaint when, on May 29 and June 3, 2014, her manager made intimidating statements to her concerning her request for a detail assignment.
Complainant, who began working at the Agency in 1999, became an Operation Support Specialist (OSS) at the Agency's "GWY" facility in 2013. Complainant's OSS position was eliminated during a reduction in force (RIF), and Complainant accepted a position as a Supervisor of Customer Services at the Birmingham Post Office, effective January 25, 2014. Complainant stated in her affidavit that she had more than ten years of SCS experience.
In a March 5, 2014, e-mail to the Postmaster of the Birmingham Post Office (S3), Complainant stated that she had informed S3 on February 13 that the Manager of Operation Support (MOS) had offered her an assignment in the In-Plant Support Department. She expressed hope that S3 and the Area Post Office Operations Manager (S4) would give her a release date soon. Complainant sent a March 20, 2014, e-mail to S4 asking for the status of her request for a detail. On April 29, 2014, she sent an e-mail to the Acting Area Post Office Operations Manager (S2) and MOS stating that she had been approved for a detail to the In-Plant Support Department, that MOS had asked S4 for a release date for Complainant, and that no date had been provided.
S2 responded on May 1, 2014, that he could not release Complainant "[a]t this time" because "Birmingham needs the stability of a Titled Supervisor over finance [and the Officer in Charge (S1)] also needs your support." He suggested that they "revisit this in the future when Birmingham stabilizes." Complainant replied that she found S2's response "disheartening." She asserted that "Birmingham's instability did not stifle [S3's] opportunity for a developmental detail" and that "replacing [her] with another finance supervisor should not delay [her] release date."
Complainant sent MOS a May 16, 2014, e-mail requesting a lateral reassignment to an open EAS-17 OSS position. MOS replied on May 22, 2014, that he was still interested in having her detailed to an OSS position. He stated, "Verify with your manager that you are available and a date [and] then we can work out the other details."
In her affidavit, Complainant stated that S1 told her that he would release her for a detail if she found someone to take her place. She also stated that she recommended three replacements: two individuals who were "established finance supervisors" (R1 and R2) and a lead clerk (R3).
Complainant argued that there was no justification for the denial of her request for a detail and that the denial deprived her of the opportunity to advance her career. She alleged that the Agency treated her less favorably than it treated other employees. In that regard, Complainant asserted that a white male (C1) who worked with her at the GWY facility also was affected by the RIF. According to Complainant, C1 received an assignment to the facility's maintenance department, stayed in the assignment for less than one year, and was released for a detail in March 2014. In addition, Complainant asserted that S2 released a white male (C2) and a white female (C3) to detail assignments at the Birmingham Post Office. She also asserted that S2 and S4 released S3 to a detail and that S3 had not been in his position for one year prior to his detail. She argued that this contradicted S2's statement to the EEO Counselor that newly promoted supervisors needed to be in their positions for one year before going on details.
Complainant stated that, on May 29, 2014, S1 called her into his office to discuss a work matter. According to Complainant, she asked when she would be released for the detail and S1 replied, "[S2] said he is not releasing you and you need to realize that detail is not going to happen!" She asserted that S1 said this "in an elevated tone." Complainant also asserted that she suggested during a June 3, 2014, meeting with S1 that the lead clerk serve as an acting supervisor and take Complainant's place. She claimed that S1 replied, "You can forget about going on a detail assignment."
S1 stated in an affidavit that Complainant told him that she had arranged for a detail but that no one ever contacted him to request a release date for Complainant. He also stated that the Birmingham facility has only two supervisory positions, that Complainant occupied one of the positions, that he told Complainant that she could leave if she had a replacement, and that S2 told him that there was no replacement available. S1 explained that C2, a Lead Supervisor at a different facility, replaced S1 for three weeks while S1 was on vacation and that C2 returned to the other facility when S1 returned from vacation. No one ever contacted S1 about Complainant replacing the Officer in Charge for a short period. In addition, S1 stated that Complainant never suggested to him that R1, R2, or R3 could replace her. He did not know R1, and he believed that R2 was a delivery supervisor rather than a finance supervisor. S1 did not believe that R3 was qualified to replace Complainant because R3 was a lead clerk rather than a supervisor, the Birmingham facility was "short" three clerk positions, and R3 would not be an appropriate replacement for a supervisor because she served as a union steward. Finally, S1 stated that he was not aware of any intimidating statements being made to Complainant and that he learned of Complainant's EEO complaint on July 1, 2014.
S2 stated that EAS employees normally must be in their positions for at least one year before receiving details. He also stated that the Agency denied Complainant's request for a detail because she had been in her position for only a few months and the Postmaster (S3) was leaving on a detail. He noted that S3 had been in his position for more than a year and had previously asked for a detail. He also noted that C2 had been in his position for more than seven years and replaced S1 for only a short period, whereas Complainant had sought a long-term detail. According to S2, C3 was a limited-duty carrier rather than a supervisor, and the Agency had an obligation to find work for her. S2 stated that R1 was already replacing a supervisor at a different facility, R2 could not go on a detail because he was a supervisor at a facility that was "short" one supervisor, and R3 was a clerk at the Birmingham facility, which was "short" of clerks. He was not aware of any intimidating statements made to Complainant.
S3 stated that he told Complainant that he would support her request for a detail but he needed to find a replacement for her. He contacted "different acting Supervisors and even Titled Supervisors," but they either were not interested in the position or could not obtain a release. He also asked Complainant to recommend people to replace her. He did not remember Complainant recommending R1; he spoke with R2, who was not interested in the position; and he spoke with R3 "about being a 204b" but she was not interested in positions beyond craft duties. He stated that he was enrolled in the Agency's Employee Leadership Development (ELD) program and that a detail to a marketing position was one of his developmental activities.
According to S4, S3 told S4 that he would grant Complainant's detail request if he could find a replacement for her. He noted that S3 was in the ELD program and that S3's Individual Development Program called for a development opportunity in marketing/sales.
R2 stated that no one contacted him about replacing Complainant. R3 similarly stated that no one asked her to replace Complainant.
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 (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant did not prove that the Agency discriminated against her as alleged. The Agency determined that Complainant did not establish a prima facie case of race discrimination because she did not show that the Agency treated her less favorably than it treated similarly situated employees who were not in her protected group. With respect to S1's alleged statements, the Agency concluded that Complainant did not establish that she suffered an adverse employment action. The Agency also concluded that Complainant did not establish a prima facie case of reprisal because she did not show that she was disadvantaged by an adverse employment action or that there was a causal connection between the alleged statements and her EEO activity. Finally, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did prove that the reasons were a pretext for discrimination.
CONTENTIONS ON APPEAL
The parties raise no arguments on appeal.
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 (EEO MD-110), at Chap. 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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). An individual can engage in activity protected under Title VII by opposing a practice made unlawful by Title VII or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. � 2000(e)-3(a).
1. Denial of Detail
For purposes of this decision, we will assume, arguendo, Complainant established a prima facie case of race discrimination here. We further find that the Agency has articulated legitimate, nondiscriminatory reasons for denying Complainant's request for a detail. S1 and S3 stated that there was no one available to replace Complainant. S2 stated in the May 1, 2014, e-mail to Complainant that the facility needed "the stability of a Titled Supervisor over finance" and that S1 needed Complainant's support. In his affidavit, S2 stated that EAS employees normally must be in their positions for one year before receiving details.
Complainant has not shown that the articulated reasons are a pretext for discrimination. Although she asserted that she recommended three individuals to replace her, Complainant has not refuted S2's explanation that R1 was replacing a supervisor at a different facility, R2 was a supervisor at a facility that was "short" one supervisor, and R3 was a clerk at the Birmingham facility, which was "short" of clerks. Further, the individuals whom Complainant cites as comparators were not similarly situated to Complainant. S3, who was a Postmaster, was enrolled in the ELD program, and a marketing detail was one of his developmental activities. C1 worked at a different facility, C2 had been in his position for several years and replaced S1 for only three weeks, and C3 was a limited-duty carrier for whom the Agency needed to find work.
Having considered the evidence of record, we find that Complainant has not proven that the Agency discriminated against her on the basis of race when it denied her a detail opportunity.
2. Alleged Intimidating Statements
We find that Complainant has not established a prima facie case of race discrimination or reprisal with respect to her manager's alleged intimidating statements. Assuming S1 made the statements that Complainant attributes to him, we cannot say that they constitute an adverse action. The statements were not inherently intimidating, and there is no showing that Complainant experienced any personal harm or injury because of the statements. To the extent that Complainant is alleging that the Agency subjected her to a hostile work environment, we find that the statements were not sufficiently severe or pervasive to alter the conditions of Complainant's employment. Moreover, we find that there is no evidence that racial animus motivated the statements.
Similarly, there is no evidence that S1 made the statements because of Complainant's protected EEO activity. In that regard, we note that Complainant has not refuted S1's testimony that he learned of the current complaint on July 1, 2014, after the dates of the statements. Complainant has not established a nexus between the statements and her protected activity.
Accordingly, we find that Complainant has not shown that the Agency discriminated against her on the basis of race or in reprisal for protected EEO activity when her manager allegedly made intimidating statements to her regarding her request for a detail.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision and its finding of no discrimination.
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.
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