Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jun 21, 2013

0120113379 (E.E.O.C. Jun. 21, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120113379

Hearing No. 470-2009-00239X

Agency No. 1C-404-0006-09

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s May 5, 2011 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. 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center in Lexington, Kentucky.
Complainant wore a hidden recorder for approximately five years and recorded conversations
she had with co-workers and supervisors. A union representative advised Complainant that she
could lose her job for recording co-workers; however, Complainant did so anyway until the
Plant Manager ordered her to stop.

On January 9, 2009, during an incident Complainant secretly recorded, Complainant asked the
Associate Supervisor (AS) for a CA-17 workers’ compensation form. Complainant had
received a CA-17 form a few weeks prior to this second request and AS questioned why she
needed another one. Complainant told AS that the form was illegible. AS instructed
Complainant to bring back the original form and he would give her a new one. The
conversation escalated as Complainant loudly banged the back side of a case and yelled the
names of other employees. AS ordered Complainant to leave the work floor and eventually
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told her to clock out because she was causing a disturbance. Complainant continued to loudly
argue with AS, questioned his authority, refused to clock out, and used the facility’s intercom
to request that her first-level supervisor (S1) report to AS’s office. S1 later escorted
Complainant to clock out, and Complainant was paid for administrative pay the remainder of
the day.

On January 17, 2009, AS held a pre-disciplinary interview (PDI) with Complainant regarding
the incident. Complainant secretly recorded the PDI in violation of Agency rules.
Management subsequently issued Complainant a 14-day suspension for improper conduct and
failure to follow instructions for her behavior during the incident. Additionally, on the day of
the PDI, AS ordered Complainant to “wall mail.” The task involved putting mail from a tray
into a box number on the wall and any box section clerk may be asked to do the task.
Complainant refused to perform the task and requested a break. AS denied Complainant’s
request, but he allowed her to go to the restroom. In the restroom, Complainant told S1 that
AS had ordered her to wall mail. S1 allowed Complainant to take a break without walling the
mail.

Complainant had been awarded a bid assignment as a Manual Mail Processing Clerk, Caller
Service Relief and other assigned duties. Complainant objected to the assigned duties and
wanted to work on certified mail, but those duties were normally assigned to other manual
clerks on limited or light duty.

On April 24, 2009, S1 gave Complainant an official discussion for leaving the Caller Service
area unattended to take her lunch break. S1 instructed Complainant to let her know of her
lunch break in advance so that S1 could ensure there was coverage. That next week, S1
discovered that Complainant had again left the area unattended for her lunch break. S1
proposed giving Complainant a Letter of Warning, but due to the guidelines of progressive
discipline policy, Complainant was issued a seven-day suspension.

On March 20, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of sex
(female), age (46), and in reprisal for prior protected EEO activity as evidenced by multiple
incidents including, inter alia, she was placed in an off-duty status; she was given a pre-
disciplinary interview and subsequently issued a notice of 14-day suspension; she was
subjected to lies and false accusations; and, she was assigned duties inconsistent with her job
assignment.

Additionally, Complainant alleged that she was discriminated against and subjected to a hostile
work environment on the bases of race (Caucasian) and in reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, she was reprimanded for taking
an early lunch; she was issued a letter of intent for a seven-day suspension; she was not
permitted to work a bid assignment; she was subjected to lies and false accusations by co-
workers; and, she was improperly denied rotational breaks.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on October 19-20, 2010, and issued a decision on April 28, 2011.

In the decision, the AJ determined that Complainant had not shown that any of the alleged
incidents were based on her protected classes. Specifically, as to the CA-17 incident, AS was
skeptical of Complainant’s motives in obtaining a new CA-17 form after he had just recently
provided her one. AS asked Complainant to bring him the old one before he issued a new one
and Complainant refused. The argument escalated and Complainant refused to follow AS’s
instructions. AS sent Complainant out of the facility because she was refusing to follow his
instructions and created a disturbance. Complainant was subsequently given a PDI to explain
her actions, but was difficult during the interview. Complainant was subsequently issued a 14-
day suspension for failing to follow AS’s instructions and engaging in misconduct.

With respect to AS’s instruction regarding wall mail, the AJ noted that S1 overruled this
instruction and Complainant did not actually have to perform the task. The AJ found that even
if AS should not have given the instruction, it did not constitute interference in Complainant’s
work environment.

Regarding the job discussion and seven-day suspension, S1 stated that she gave Complainant a
job discussion and later a notice of seven-day suspension for leaving Caller Services unattended
to take her lunch break. During that discussion, S1 informed Complainant that she needed to
know in advance when she had to cover Complainant’s lunch break. A week later,
Complainant again left Caller Services unattended during her lunch break and customers were
left waiting for service. S1 proposed giving Complainant a Letter of Warning, but it was
increased to a seven-day suspension based on the progressive discipline policy.

With respect to Complainant’s claims that she was subjected to verbal abuse and false
accusations from her co-workers, the AJ determined that the work atmosphere was poor, but it
had more to do with the constant bickering among Complainant and her co-workers. The AJ
found that the record was replete with incidents in which Complainant and her co-workers
engaged in shouting matches. The AJ found that the evidence showed that Complainant was
usually the employee who initiated the confrontations and her conduct caused disruption in the
workplace.

As to her claim that she was not permitted to work her bid assignment, the AJ found that
Complainant was awarded a bid on a newly-established Manual Mail Processing Clerk, Tour
1, Caller Service Relief, Box Section position which included other duties as assigned.
Complainant was primarily responsible for Caller Services and Box Mail, but Complainant
wanted to work on certified mail because it allowed the employee to sit down while working.
This duty was often not assigned to Complainant, however, because it was assigned to other
manual clerks who needed light or limited duty assignments that required sitting. As to her
allegation that she was denied rotational breaks, the AJ determined that Complainant did not
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adequately explain what she meant by this claim. Nonetheless, testimony at the hearing
revealed that “rotational breaks” was a concept applicable to employees who operate postal
machines, not to employees in manual operations.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order adopting the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred by failing to analyze the totality of the
circumstances of her hostile work environment claim. Further, Complainant argues that she
has shown the Agency’s reasons for issuing her discipline are pretextual and that AS retaliated
against her in January 2009 by telling her to clock out and removing her from the workroom
floor. Finally, Complainant contends that the AJ improperly perceived her as not credible
because she wore a recording device at work. Accordingly, Complainant requests that the
Commission reverse the final order.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 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.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
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prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

The Commission finds that the AJ's determination that the Agency articulated legitimate,
nondiscriminatory reasons for its actions is supported by substantial record evidence.
Specifically, regarding the events that led to her 14-day suspension, AS testified that he
explained to Complainant that he would provide her a new CA-17 form when she returned the
one she had been given previously. Hr’g Tr., 287-88. The situation escalated and
Complainant created a disturbance, including banging her fist against a manual flats case and
yelling other employees’ names. Id. at 286-89. AS then instructed Complainant to leave the
property several times. Id. at 289. Complainant was ultimately sent home, but given
administrative pay. Id. at 294. Management held a PDI with Complainant on January 17,
2009, and ultimately issued her a 14-day suspension for improper conduct and failure to follow
instructions based on her conduct on January 9, 2009.

Regarding her claim that she was assigned duties inconsistent with her job assignment,
testimony revealed that AS initially gave Complainant an instruction to “wall mail” when she
was on her way to take a break on the same day of her PDI. Hr’g Tr., at 116, 418. While
this was a duty that Complainant could have been assigned as Box Section clerk, the record
revealed that Complainant never actually had to wall mail as S1 allowed her to take a break
and not perform the task. Hr’g Tr., at 116-21.

With respect to the events that led to Complainant receiving a seven-day suspension, S1 had a
job discussion with Complainant after she took a lunch break and left Caller Services
unattended. Hr’g Tr., at 454. S1 instructed Complainant to let her know before she took her
lunch break so that S1 could ensure there was coverage. Id. at 454-55. A week later, S1
discovered that Complainant again took her lunch break and left the Caller Services area
unattended. Id. at 510. As a result, S1 issued Complainant a seven-day suspension for failure
to follow instructions. Id. at 515.

Regarding Complainant’s claims related to her bid assignment duties, S1 testified that certified
mail duties were not part of a primary duty assignment; rather, there were considered duties
for all manual clerks. Hr’g Tr., at 491, 500. S1 further testified that these duties were
primarily assigned at the time to three employees who were on limited or light duty or who
were subject to the National Reassessment Program. Id. at 491-92, 501. Further, regarding
“rotational breaks,” management testified that this concept applied to equipment operations and
not to manual clerks. Id. at 348.

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Finally, with respect to Complainant’s claims that she was subjected to false accusations and
abuse by her co-workers, testimony revealed that Complainant had a contentious work
relationship with several co-workers. Hr’g Tr., at 402, 581. Management investigated a
hostile work environment complaint by a co-worker against Complainant and ultimately
separated the two. Id. at 483-85. Additionally, S1 testified that she broke up any heated
conversations she witnessed between employees and talked to them one-on-one about their
conduct. Id. at 476. The Commission notes that Title VII is not a civility code. Rather, it
forbids “only behavior so objectively offensive as to alter the conditions of the victim's
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Thus, the
Commission finds that substantial evidence in the record supports that the AJ’s determination
that the alleged incidents were not based on discriminatory animus.

The Commission finds that the AJ's determination that Complainant failed to establish pretext
as these claims is supported by substantial evidence in the record. The record and facts
gleaned at the hearing fail to prove any evidence purporting to show the Agency's actions were
pretext for discriminatory or retaliatory animus. Moreover, a finding of a hostile work
environment is precluded by the Commission’s determination that Complainant failed to
establish that the alleged actions were motivated by discriminatory or retaliatory animus. See
Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). As a result, the
Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION

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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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.
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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 (Nov. 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
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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

June 21, 2013
Date