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

Equal Employment Opportunity CommissionApr 9, 2014
0120140560 (E.E.O.C. Apr. 9, 2014)

0120140560

04-09-2014

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


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120140560

Hearing No. 510-2012-00221X

Agency No. 4G-330-0026-11

DECISION

On November 19, 2013, Complainant filed an appeal from the Agency's October 23, 2013, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales Services/Distribution Associate at the Agency's Post Office facility in Jupiter, Florida.

On May 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (major depression, anxiety and stress disorder), age (50), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 196 and the Age Discrimination in Employment Act of 1967 when: from September 30, 2010 to April 8, 2011, Complainant was subjected to harassment. Complainant asserted, in support of her claim that the following events occurred:

1. She was intimidated and disrespected and her abilities to do her job were insulted on various occasions;

2. She was denied leave under the Family Medical Leave Act (FMLA);

3. She was denied lunch on October 8, 2010.

4. The Officer-in-Charge (OIC) told the supervisor (Supervisor) to follow Complainant into the restroom.

5. She was issued disciplinary actions such as a Letter of Warning (LOW) issued September 2, 2010 and November 10, 2010.

The Agency initially dismissed the complaint. However, the Commission reversed the Agency's dismissal and remanded the complaint for further processing. Tucker v. U.S. Postal Serv., EEOC Appeal No. 0120113194 (Dec. 1, 2011). As such, the Agency investigated the complaint. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).

The decision initially dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(5) on the basis of mootness. The Agency noted that Complainant had also filed a grievance that expunged the LOW and provided Complainant with leave rather than the initial charges of Absence without Leave (AWOL). The decision held that the grievance resolved the effects of the alleged discrimination and that there was no reasonable expectation that the alleged discrimination may reoccur. As such, the Agency found that matter was moot. Further, to the extent Complainant alleged discrimination when she was denied leave under FMLA, the Agency noted that such a claim constituted a collateral attack on the FMLA process. As such, the Agency dismissed those claims involving FMLA.

The Agency then addressed the merits of Complainant's claim of discrimination. The Agency found that Complainant failed to establish a prima facie case of disparate treatment based on sex, age, and/or disability. Assuming Complainant established her prima facie case of disparate treatment, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. Further, the Agency determined that Complainant failed to show that these reasons constituted pretext. The decision then turned to Complainant's claim of harassment. The Agency found that Complainant failed to show that the alleged events constituted a hostile work environment. Therefore, the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

This appeal followed. On appeal, Complainant indicated that in her 30 years of service to the Agency, she has never experienced fears and intimidation as she has at the hands of the OIC. She asserted that he has displayed "his unprofessional work ethics of harassment against" Complainant. She argued that she was told by a coworker that the OIC ordered the Supervisor to follow her into the bathroom. She felt that the OIC has been harassing, intimidating, staring, and pressuring her. Complainant concluded by stating that she is unable to work due to the OIC's actions and fears that he has intentionally harmed her. The Agency responded to the appeal requesting that the Commission affirm its decision finding no discrimination.

ANALYSIS AND FINDINGS

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. (November 9, 1999) (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").

FMLA Leave

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions regarding FMLA is with the Department of Labor. It is inappropriate to now attempt to use the EEO process to collaterally attack actions regarding the FMLA process. As such, the Commission dismisses Complainant's claims of harassment involving FMLA.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Complainant asserted that she was treated differently when: on September 2, 2010, she was issued a LOW for unsatisfactory attendance; on October 8, 2010, she was denied a half hour for lunch; and on November 10, 2010, Complainant was issued a LOW for improper conduct.

Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. The Supervisor averred that he issued one LOW based on Complainant's failure to provide documentation to support her absences. He also noted that Complainant failed to notify management that she would be absent. Further, the Supervisor issued a second LOW for Complainant's inappropriate behavior. It was noted that Complainant became belligerent and loud with another supervisor on September 30, 2010. In addition, on October 8, 2010, Complainant spoke to the OIC in a loud manner and proceeded to call the OIC an "asshole." Finally, as to the alleged denial of lunch, the OIC stated that he could not deny someone lunch. Based on our review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to establish that the Agency's reasons were pretext. We find that Complainant has failed to do so.

Harassment

It is well-settled that harassment based on an individual's sex, age, disability and prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on sex, age, disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).

Again, for the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review, we find that Complainant alleged a series of events which she asserted occurred because of her protected bases. She indicated that she had never been treated so poorly in her 30 years working with the Agency. She argued that the OIC has served her unwarranted disciplinary actions. Complainant takes issue with the OIC's attacks on her work ethics and forced her to work harder. She summarily asserted that the OIC has taken these steps against her because of her protected bases without substantiating her claims with evidence. Further, coworkers that provided affidavits did not support her assertions that she was singled out based on her age, sex, presumed disability and/or prior EEO activity. Therefore, we conclude that Complainant failed to establish that the alleged harassment occurred because of her protected bases.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.

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

April 9, 2014

__________________

Date

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0120140560

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120140560