0120160535
03-30-2017
Denise G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Denise G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120160535
Hearing No. 510-2014-00481X
Agency No. 4B-0060-012-14
DECISION
On November 10, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 9, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Window/Sales Associate Clerk at the Agency's Post Office in Christiansted, U.S. Virgin Islands.
On March 4, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (St. Croix), sex (female), disability (migraines and anxiety/stress), age (42), and reprisal for prior protected EEO activity when she was subjected to ongoing harassment. In support of her claim, Complainant alleged that the following events occurred:
1. On or about February 2013, management did not inform Complainant that a Certified Supervisor test was coming up, nor was a notice of the test posted.
2. On February 25, 2013 and December 16.2013, the Lead Sales Clerk used her code in the Integrated Retail Terminal (IRT) without her permission.
3. On May 17, 2013, the Supervisor asked her to fake her code out of the computer.
4. On October 2, 2013, the Lead Sales Clerk closed out her drawer while she was off and listed a shortage for her against the Supervisor's orders.
5. On October 15, 2013, the Postmaster yelled at her to get back to the window.
6. On November 12, 2013, the Lead Sales Clerk counseled her regarding turning in too much money at the end of the day.
7. On November 26, 2013, she was given additional work because the Lead Sales Clerk had refused to cover the window on November 25, 2013.
8. On December 9, 2013, Complainant's request for leave was denied.
9. In December 2013, the Postmaster did not recognize Complainant for obtaining a 100% Mystery Shopper score.
10. On January 27, 2014, the Lead Sales Clerk twice took a stapler she was using from her work area.
11. On February 6, 2014, Complainant was required to attend a meeting regarding the Lead Sales Clerk's complaint of harassment against her, yet management failed to act on her prior complaints of being harassed by the Lead Sales Clerk.
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). 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 concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed.
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. (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").
It is well-settled that harassment based on an individual's national origin, sex, age, disability, and/or prior EEO 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, 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 national origin, 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).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her national origin, sex, age, disability or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
As to allegation (1), Complainant asserted that management was aware of her desire to take the supervisory test. Her Supervisor (Black female, older than Complainant) called the postmaster at another facility for her to inquire about the test, but learned that it had already occurred. Complainant believed that the Postmaster (African American male, older than Complainant) at her facility did not announce the test because he did not want her to take the exam. The Postmaster responded by stating that vacancies and tests are announced by the Agency's Human Resources Office. He denied trying to keep the test information from Complainant.
In allegation (2), Complainant asserted that the Lead Sales Clerk (African American female, age 56), who was not Complainant's supervisor, violated Agency rules by using Complainant's POS code in the integrated retail terminal. The Postmaster stated that he was not aware of the situation and that Complainant was the only person who should have her password. The Supervisor also noted that Complainant should be the only person who knows her password and stated that if the Lead Sales Clerk used Complainant's workstation, it was because Complainant stepped away while it was on.
As to allegation (3), Complainant asserted that the Postmaster asked the Supervisor to take her code off the computer. Complainant indicated that this happened while she was with a customer. The Supervisor noted that the Lead Sales Clerk needed a particular computer for specific information which was locked because Complainant had been logged into that computer. As such, the Supervisor asked Complainant to log out of the computer.
In allegation (4), Complainant asserted that the Lead Sales Clerk logged in as her while she was out, resulting in Complainant being held responsible for a shortage. The Postmaster averred that it was the Lead Sales Clerk's responsibility for counting and closing out drawers and Complainant was not issued a Letter of Demand requesting payback of any alleged shortage. As such, the Agency denied that Complainant was placed in a position of owing money.
In allegation (5), Complainant asserted that the Postmaster yelled at her to get back on the window while she was on her break. The Postmaster was informed that Complainant had been on an extended break when he saw a long line of customers waiting. He claimed that he did not yell, but did instruct her to go to the window. He noted that Complainant was hesitant but she eventually went to the window.
In allegation (6), Complainant asserted that the Lead Sales Clerk counseled her for turning in too much money at the end of the end of the day. Complainant also indicated that the Lead Sales Clerk complained about having too many single dollar bills to count despite the existence of a bill counter that could handle single dollar bills.
In allegation (7), Complainant asserted that the Lead Sales Clerk created a situation which resulted in additional assignments for Complainant. Complainant alleged that the Lead Sales Clerk refused to cover the window on November 25, 2013, so a co-worker who had been assigned afternoon breakdown of shipments for that day was unable to do so. As a result, Complainant was given the assignment to do the morning shipment for November 26, 2013, and the afternoon shipment from the day before. Complainant asserted that she was given double the work because of the Lead Sales Clerk's actions. The Postmaster and the Supervisor did not recall this event.
In allegation (8), Complainant indicated that her leave request in December 2013, was denied by the Supervisor. The Supervisor noted that the Lead Sales Clerk had been on leave from November 26, 2013, to December 16, 2013. Considering that December was a busy time for the Post Office, the Supervisor could not have Complainant out on leave on the day she requested.
In allegation (9), Complainant also claimed in December 2013, she was the only employee who the Postmaster did not recognize for obtaining a "100% Mystery Shopper" score in October 2013. The Postmaster noted that he believed Complainant received the score in November 2013. Further, he recognized Complainant's accomplishment on January 9, 2014, where she was given a token of appreciation.
In allegation (10), Complainant alleged that the Lead Sales Clerk twice took a stapler that Complainant had been using from Complainant's work area. Complainant believed that this constituted an act of bullying. Complainant complained about the event, as did the Lead Sales Clerk. Complainant was called by the Postmaster into a meeting where she was reprimanded for a complaint levied by the Lead Sales Clerk. The Lead Sales Clerk asserted that Complainant grabbed the stapler out of her hand and that it was Complainant who had been interrupting her window work during the day. Then, as alleged in allegation (11), Complainant was required to attend another meeting with the Postmaster about a second complaint filed by the Lead Sales Clerk. The Postmaster indicated that he had to conduct the meetings based on the complaints filed by the Lead Sales Clerk against Complainant. He also indicated that he wanted to meet with Complainant about her issues with the Lead Sales Clerk.
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Further, we note that Complainant has provided no evidence beyond her bald assertions that the events occurred because of her protected bases. Therefore, we conclude that Complainant has not shown that she was subjected to unlawful discrimination based on her sex, national origin, age, disability, and/or prior EEO activity.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
March 30, 2017
__________________
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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