Dominica V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 18, 2020

2019002867 (E.E.O.C. Aug. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019002867 Agency No. 4G-770-0180-17 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 1, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier, RR- 00, at the Agency’s Spring Klein Station in Spring, Texas. Complainant asserted that she experiences complications from anxiety and panic attacks and that she made the Agency aware of her condition through Family and Medical Leave Act (FMLA) paperwork. However, Complainant stated she has no work restrictions as a result of her condition. Complainant averred that a coworker (CW1) harassed her as early as February 22, 2017 and on multiple occasions through June 2017. Complainant claimed that CW1 lied about her and threatened her, but management took no action. Then, on June 8, 2017, Complainant’s supervisor (S1) constantly ignored her. 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. 2019002867 2 Complainant claimed she reported the harassment to S1, the Station Manager (SM), and the Postmaster, but nothing was done. Further, Complainant argued that the harassment intensified after she withdrew an earlier EEO complaint. The Manager, Customer Services (MCS) affirmed that Complainant told her that CW1 goes to the restroom when she goes to the restroom, bought the same shoes as her, and followed Complainant to her route. MCS stated she spoke with CW1 who denied the allegations, and MCS further explained that both Complainant and CW1 have the same line of travel to their routes, at which point, CW1 turned off and started delivering her mail. On January 31, 2017, Complainant approached CW1 in a threatening manner, waved her hands, and stated, “what’s up.” Complainant believed she had a reputation of filing harassment claims on “those that tease and harass me” and as a result CW1 claimed that Complainant threatened her. Following a February 22, 2017, investigative interview regarding the incident, Complainant approached S1, pointed her finger and told S1 to get on her knees and do what she does best. Complainant then failed to appear for a March 16, 2017 investigative interview. Based on these incidents, management issued Complainant a 14-Day Suspension for Unacceptable Conduct on April 13, 2017. By its terms, the suspension was a paper suspension with no time off. Therefore, Complainant did not lose any working days as a result of the disciplinary action. Complainant did not work the week beginning April 15, 2017. According to Complainant, she was removed from the schedule and was not allowed to return until April 24, 2017. Complainant believed there was corruption in the way the schedule was created and that her supervisors blamed her for being Absent Without Leave (AWOL). The record contains the schedule for the week of April 15, 2017, and Complainant was listed on the schedule as a regular carrier, but a replacement was scheduled for her route. Another coworker (CW2) testified that the schedule had been done in error and incorrectly based on the previous week. Complainant did not reach out to her supervisors for clarification. CW2 said that he informed Complainant of the error, but Complainant said she was not coming in because it was the supervisors’ error. On April 27, 2017, the Agency issued Complainant a Seven-Day Suspension for Unacceptable Attendance/AWOL. The suspension notice explained that Complainant was assigned to work on April 19 and 20, 2017, but failed to report to work and did not call to report her absence. In the investigative interview, Complainant said that she was “confused and did not understand.” Management further explained that Complainant’s seniority meant she was well aware of the Agency’s scheduling procedures. Complainant insisted that she was not AWOL, but rather placed off the clock and not directed to work. Complainant further denied requesting these days off. The suspension was later reduced to a Letter of Warning. On June 8, 2017, Complainant claimed that she was in the conference room attempting to write a statement for her union representative. S1 came into the conference room and instructed Complainant to go back to her case. 2019002867 3 Complainant said she would and proceeded to finish her statement. According to Complainant, “I guess I wasn’t moving fast enough for her, she turned around and said ‘I’m going to get your union steward and [SM] and we are going to get you for failure to follow.’” Complainant said S1’s comment triggered a panic attack and she called the police. After speaking with the Postal Inspector, Complainant says she began hyperventilating and the management called an ambulance for her. Complainant was subsequently placed on Emergency Placement for Unacceptable Conduct. The notice explained that Complainant received instructions to leave the conference room and return to her assigned case. However, Complainant made erratic movements, jumped up from the conference table, said loudly that “this is harassment, you didn’t have nothing to say the other day when she was ignoring me, I’m calling the police!” After Complainant stated she was having an anxiety attack, she continued to display erratic behavior and refused to calm down. Complainant disagreed that she engaged in unacceptable conduct and insisted she was having an anxiety attack because she was being bullied and intimidated by management. On July 3, 2017, the Agency issued Complainant a Notice of Removal for unacceptable conduct, citing the events on June 8, 2017. Complainant added that she refused to respond to any questions during the investigative interview but claimed that her removal was improper because she had FMLA paperwork protecting her in the event she has anxiety attacks, but that management did not care. Complainant provided copies of FMLA documentation dated both November 21, 2013, and June 1, 2016, in which her physician indicated she has an anxiety disorder, which has sudden onset resulting in her being incapacitated and unable to work. The Supervisor, Customer Services (SCS) explained that Complainant failed to follow instructions by her supervisor and began yelling at management staff, as witnessed by several management officials, the postal inspector, and her union representative. SCS conducted the investigative interview on June 15, 2017. In his proposal to remove Complainant, SCS wrote that Complainant appeared at the investigative interview, “sat at the table and would not respond” to SCS’s questions. The Postal Inspector averred that he told Complainant that he was witnessing her disobeying a directive given to her by a supervisor. In response, Complainant became agitated and accusatory of managers within the office toward her. On July 31, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety) and in reprisal for prior protected EEO activity when: 1. Beginning February 22, 2017, and continuing, Complainant has been subjected to ongoing harassment and hostile work environment from her co-worker (CW1), and management has not taken any action; 2. On April 13, 2017, Complainant was issued a 14-Day Suspension for Unacceptable Conduct; 3. On April 24, 2017, Complainant became aware that her name was removed from the schedule and she was not allowed to work for one week; 2019002867 4 4. On April 27, 2017, Complainant was issued a Seven-Day Suspension for Unacceptable Attendance/AWOL; 5. On June 9, 2017, Complainant was placed on Emergency Placement; and 6. On July 3, 2017, Complainant was issued a Notice of Removal for Unacceptable Conduct. In its final decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. Specifically, the Agency concluded that the explanations articulated by management were legitimate and non-discriminatory. Further, Complainant did not show, beyond a preponderance of the evidence, that the Agency’s explanations were pretext for discriminatory or retaliatory animus. The Agency also concluded that Complainant’s allegations were not sufficiently severe or pervasive to constitute an unlawful hostile work environment. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant 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”). 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). Complainant must initially establish a prima facie case by demonstrating that he 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). 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. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. 2019002867 5 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 Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this matter, the Agency has articulated legitimate, non-discriminatory reasons for its actions. Regarding claim (2), the Agency suspended Complainant for 14 days due to unacceptable conduct. More specifically, on January 31, 2017, Complainant approached CW1 in a threatening manner, waved her hands, and stated, “what’s up.” Following an investigative interview regarding the incident, Complainant walked toward the supervisor with her right arm raised, pointed her finger, and told the supervisor to “to get on her knees and do what she do best.” Complainant was instructed to leave the building, but she initially refused and continued to be disruptive. Complainant failed to appear for a second investigative interview. As a result, management issued Complainant a 14-Day No Time-Off Suspension. With respect to claims (3) and (4), while the record indicates that there was some confusion and errors regarding the April 15 - 21, 2017 schedule, Complainant made no effort to get clarification despite her experience. Management believed that Complainant failed to report to work for her regular schedule and suspended her for seven days for failing to report to work without obtaining appropriate approval. The suspension was later reduced to a Letter of Warning. With regard to claim (5), Complainant was placed on emergency placement for her disruptive actions on June 8, 2017. As for claim (6), Complainant was removed from employment for unacceptable conduct for the incident on June 8, 2017. Complainant was given the opportunity to explain her actions but refused to respond to any questions. Complainant’s prior disciplinary history was considered in issuing the Notice of Removal. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Although Complainant contends that her supervisors and CW1 are lodging false accusations against her, at all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged.2 2 To the extent Complainant claims that she was removed due to complications from her condition, management asserted that she was disciplined and removed based on several incidents of hostile 2019002867 6 Hostile Work Environment To establish a claim of a hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her protected classes, she was subjected to a hostile work environment as evidenced by several incidents of what she believed to be discriminatory and retaliatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the incidents alleged were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. As discussed above, there is no evidence of discriminatory or retaliatory animus regarding the incidents alleged in claims (2) - (6). With respect to claim (1), Complainant alleged that CW1 lied about her, blamed her for every incident that occurred, and threatened her. Further, Complainant claimed that CW1 followed her on her route and dressed similarly to her. Management officials looked into Complainant’s allegations but determined that Complainant’s allegations of harassment were unsupported, and that Complainant had actually threatened CW1. Therefore, management took no action against CW1. Complainant has failed to demonstrate that any of the alleged incidents were based on her protected classes. Accordingly, the Commission finds that Complainant was not subjected to a hostile work environment as alleged. and/or threatening behavior. The Commission notes that an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. See Enforcement Guidance on Reasonable Accommodation, at Question 36. 2019002867 7 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 (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. 2019002867 8 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 August 18, 2020 Date