0120123225
07-01-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120123225
Hearing No. 560-2011-00228X
Agency No. 4E-640-0022-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 16, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination and/or harassment is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's St. Joseph facility in St. Joseph, Missouri. Complainant alleged that she was subjected to harassment and discrimination by the Postmaster and the new supervisors that he brought with him to the facility. Complainant contends that on November 9, 2010, she was notified that a supervisor (S1) would be going out on the street with her. Complainant asserted that she is a nervous person and with "someone breathing down her back," she had to make extra trips to the restroom due to her nervous stomach. After lunch, Complainant stopped at a convenience store for another restroom break, at which time S1 confronted her and told her that was the last time she could use the restroom. Complainant explained that she had a nervous stomach and that such stops were out of her control. S1 accused her of not using the restroom during her lunch break. Complainant contends that S1 caused a scene and several of the customers in the store came up to her and told her that S1 should not have spoken to her that way. In fact, some of the customers called the postal facility and complained about S1's behavior.
On November 12, 2010, Complainant was issued a 14-day suspension for failure to follow instructions when: (a) on November 4, 2010, she failed to complete her route and returned 20 minutes of the route to the office, where it had to be delivered by another carrier; (b) on November 8, 2010, she was observed deviating while making deliveries and she later stated that she had skipped her lunch and breaks in order to make it back to the office on time: (c) on November 9, 2010, she was observed by S1 retrieving mail from her storage unit while having mail in her lap while driving, both of which were safety violations. Additionally, on October 23, 2010, she had been instructed by S1 not to hold, finger, retrieve or have mail in her hand or lap while operating her vehicle; and (d) on September 28, 2010, she failed to complete her route and returned 40 minutes of the route to the office, where it had to be delivered by another carrier.
Complainant's past discipline, i.e., a Letter of Warning dated August 7, 2009, and a 7-day suspension, dated August 15, 2009, both for Failure to Follow Instructions, was considered with regard to the instant suspension. Complainant maintained that she should not have received the discipline and that she never had a discipline problem until the Postmaster (S2) came to the facility and demoted or got rid of existing supervisors. Complainant explained that the inefficiencies cited by management were brought on by her inability to concentrate because of the harassment she was receiving.
On November 18, 2010, Complainant went home early because she was experiencing fainting spells. Complainant was told that she could leave but she had to return with a doctor's note. When Complainant went into work the following day, she was sent home because she did not have the doctor's note. Complainant received a doctor's note on November 22, 2010. Complainant acknowledged that she received payment for these hours that were initially denied after she provided adequate medical documentation.
Complainant maintained that management reported her time incorrectly resulting in her paycheck for the period covering January 6 - 11, 2011, being incorrect. Complainant asserted that she had pre-approved FMLA leave for this period of time but that in retaliation for filing a complaint S1 would not approve payment. Complainant acknowledged that the FMLA time was for unpaid leave without any payroll adjustments.
On December 19, 2010, Complainant was issued a 7-Day Suspension for Failure to Follow Instructions. On December 14, 2010, S1 witnessed Complainant operating her vehicle while holding mail in her hand. S1 maintained that Complainant had previously been told not to operate a vehicle in an unsafe manner. Complainant maintained that she should not have received the discipline because she had a walking mail route for over 20 years, so that when she got a mounted route, she did not realize that she had route inspections on that route and that no one had ever mentioned that to her before. The 7-day suspension was grieved along with the November 12, 2010 suspension. Both suspensions were reduced to a two year Letter of Warning ending December 19, 2012.
Complainant indicated that S1 denied her request for Emergency Annual Leave and charged her with being Absent Without Leave (AWOL). She explained that due to a blizzard her flights were cancelled so she requested leave until the end of the week. After Complainant's assertion regarding the cancelation of the flights was confirmed a pay adjustment was executed which changed 16 hours of AWOL to annual leave to cover February 2 and 3, 2011. Management continued however to charge her with AWOL for February 4 and 5, 2011, because Complainant was back in the Kansas City area late on the night of February 2, 2011, and did not return to work until February 8, 2011.
Finally, Complainant maintained that S1 failed to call 911 for her after she collapsed. Complainant explained that after being given a 7-day suspension, she went back to her chair but upon getting up, her legs felt weak and she collapsed to the floor. At that time S1 asked if she needed 911 and she responded that she did not. He also asked her if that meant that she was not going to sign the 7-day suspension that he had just given her. She asked S1 to leave the area. A coworker attempted to help her back in the chair but her legs gave out again and she fell to the floor. S1 offered to help Complainant but she indicated that she did not want his hands on her. However, after her second collapse, she indicated several times that she wanted someone to call 911 but S1 did not. Therefore, she asked a carrier to ask her stepdaughter to come into the room. The stepdaughter called 911 and she was taken to the hospital just as facility medical team was arriving. Complainant's was diagnosed as having had an anxiety attack.
On February 25, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (Carpal Tunnel Syndrome, Depression/Stress/Anxiety, Broken Right Ankle and Blurred Vision), age (59), and reprisal for prior protected EEO activity when management intentionally engaged in discriminatory harassment against her which included but not limited to: (1) on November 9, 2010, she was harassed in the parking lot of a convenience store by her manager regarding her bathroom stops; (2) on November 12, 2010, she was issued a 14-Day Suspension; (3) on November 18. 2010, management requested medical documentation and she was not paid; (4) on unspecified dates, her supervisor reported her time incorrectly resulting in her pay checks being incorrect including on January 6 -11, 2011, when she had pre-approved FMLA but was not paid; (5) on December 19, 2010, she was issued a 7-Day Suspension for Failure to Perform Her Duties in a Safe Manner; (6) on February 1, 2011, she requested Emergency Annual Leave, which was denied; and (7) on February 11, 2011, management delayed in calling 911 for her.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge. Prior to the proceedings, however, Complainant withdrew her request for a hearing and therefore a FAD was issued.
Disparate Treatment
The Agency found that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, management articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the articulated reasons were pretext for discrimination. Specifically, the Agency found that issues nos. 2 - 6, were discrete acts. Management explained that with respect to issues nos. 2 and 5, where Complainant was issued a 14-day, and 7-day suspension respectively, Complainant was issued the 14-day suspension for failure to follow instructions as she had been seen visiting a storage locker, she was observed deviating from her route, she failed to deliver the mail assigned to her, she was spotted retrieving mail from her storage locker, and she was seen driving with mail in her lap. Complainant was issued the 7-day suspension because again she was spotted driving with mail in her hand therefore it was determined that she had failed to perform her duties in a safe manner. With respect to issue no. 3, management indicated that Complainant was asked to provide medical documentation for medical leave request on November 18, 2010, because she indicated that she was going home due to stress arising from intimidation and bullying. S1 indicated that the request for documentation was made to protect the interests of the Postal Service. The record shows that Complainant was paid once her medical documentation was submitted. With regard to issue no. 4, Complainant's time being incorrectly reported which resulted in her pay being incorrect, management explained that Complainant failed to turn in medical documentation in a timely manner and as a result the information for January 6 - 11 was processed by the Time and Attendance Control System as unpaid leave pending documentation. Moreover, management maintained that Complainant was advised that whenever there was a problem with her pay she should say something so that the problem could be fixed. Regarding issue no. 6, management explained that Complainant's request for emergency annual leave was denied because she originally asked that her leave be extended through the week even though she was supposed to report back on February 2, 2011. Therefore, she was charged with AWOL. However, once it was verified that Complainant's flights were cancelled she was allowed to take leave for those days.
To show pretext Complainant asserted that two female and one male employee had been treated more favorably than she had with respect to leave and intimidation. Management found however that the comparators were not similarly situated to Complainant as both women had restrictions that were not similar to hers and the male employee provided medical documentation when asked with regard to his use of leave and upon his collapse in the office he or someone took him to the hospital. Accordingly, the FAD found that Complainant did not demonstrate that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved with regard to any of the incidents.
Hostile Work Environment
Further, the FAD found that with respect to issue no. 1, management indicated that S1 questioned Complainant about her need for restroom stops as she made multiple stops during her delivery but not during lunch. Management indicated that an investigation was conducted regarding what occurred at the convenience store and it was found that the owner of the store was Complainant's brother-in-law, and the witnesses that called the facility to complain were family members and friends of Complainant. Agency witnesses indicated that Complainant found it hard to follow S1's instructions and that her "main problem had been wanting to do what she wants to do rather than following instructions." S1 maintained that he did not question Complainant's restroom breaks based on discriminatory reasons.
Finally, with regard to Complainant's contention that management delayed in calling 911 for her, management indicated that initially she maintained that she did not want anyone to call 911 and that S1 was upsetting her. After Complainant collapsed, S1 asked Complainant if that meant that she was refusing to sign her 7-Day suspension and Complainant thereafter collapsed again. Complainant then changed her mind regarding her need for 911. Management indicated that Complainant requested that her daughter-in-law be brought to her and 911 be called. While this was occurring, the medical team had been called to assess Complainant's condition. The FAD found that these incidents combined with all of the issues in Complainant's complaint were not severe or pervasive enough to establish a hostile work environment.
Thus, the FAD found that Complainant did not demonstrate that she was subjected to discrimination or a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that it is disheartening that the Postal Service is able to get away with inflicting so much abuse and harassment on a daily basis on employees. She contends that for twenty years she did not have a problem but when the current Postmaster and his supervisors arrived her problems began. Complainant maintains that her supervisors knew that she had made a claim of harassment and she begged them and the union to help her stop the abuse but no one helped. She maintains that she still has crying spells over the whole situation. Further, while it was not a part of the case, Complainant believes that the Postmaster is highly prejudiced against white employees and women. She asserts that many women have quit the Agency because of the abuse.
In response, the Agency contends that other than Complainant's conclusory statements she has not provided any evidence that would warrant a finding of discrimination/harassment.
ANALYSIS AND FINDINGS
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. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for its actions in issues 2 - 7 and Complainant did not demonstrate that the reasons were pretext for discrimination. Also, we find that the incidents complained of in issues 1 and 7 do not establish a claim of discriminatory harassment. Primarily, because we find no persuasive evidence that these matters took place because of Complainant's disability, age and prior EEO activity. Further, on appeal, we find Complainant did not present any evidence which suggests that discrimination/harassment was involved with regard to these incidents.
Accordingly, the preponderance of the evidence of record does not establish that discrimination or harassment occurred. The Agency's FAD is hereby AFFIRMED.
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
___7/1/15_______________
Date
2
0120123225
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123225