Glynda S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity CommissionDec 15, 2017
0120152387 (E.E.O.C. Dec. 15, 2017)

0120152387

12-15-2017

Glynda S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Glynda S.,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Western Area),

Agency.

Appeal No. 0120152387

Agency No. 4E-980-0003-15

DECISION

On July 7, 2015, 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 June 8, 2015 final decision concerning her 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.

BACKGROUND

Introduction

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the North City Station located in Seattle, Washington.

On December 15, 2014, Complainant filed a formal EEO complaint alleging that the Agency discriminated against and subjected her to hostile work environment harassment based on disability (Systemic Lupus Erythematosus and Relapsing Polychondritis) when:

1. on July 23, 2014, the Agency issued her a letter of warning (LOW),

2. on July 23, 2014, management denied her an unpaid break,

3. on September 24 - 25, 2014, management took her off work,

4. on September 29, 2014, management discussed Complainant's Family and Medical Leave Act (FMLA) protected leave with her, told Complainant FMLA only covered her for two months, and instructed Complainant to call the FMLA Coordinator to find out why,

5. on September 30, 2014, Complainant was instructed to ask for permission to leave her work area, to be at work on time, and accused of missing scans,

6. on September 30, 2014, management singled Complainant out when it asked her to sign PS-Form 3971 and did not allow her to make up the time, and

7. on September 30, 2014, management publicly posted Complainant's sick leave record, for which she went home.

The Agency accepted incidents (1) through (3) and (5) through (7) for investigation. The Agency dismissed incident (4)2 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.

Investigation

During the EEO investigation, Complainant stated that she cannot work more than eight hours per day, on nonscheduled days, or on holidays and she cannot push or pull heavy carts. Complainant stated that she uses assistive devices, like a special upright handcart to perform her work.

The Agency provided the information that follows in response to Complainant's claims.

1. The Station Manager (S1) stated that, on July 23, 2014, the Agency issued Complainant a LOW for her attendance. The record contains a LOW dated July 18, 2014, citing "failure to be in regular attendance." S1 stated that she ended up removing the LOW because it cited incorrect dates.

2. S1 stated that she did not deny Complainant's break on July 23, 2014. She stated that City Carriers are entitled to two 10 minute breaks per shift - one in the office and one in the street. She stated that, about 2:30 p.m., Complainant contacted the station stating that she could not complete her route within eight hours and she needed assistance. Complainant also stated that she was going on break. S1 stated, about 2:45 p.m., a Carrier Assistant met Complainant on her route and her break should have been over by that time. S1 stated that Complainant refused to give the Carrier Assistant the cache key so that he could retrieve the undelivered mail from her truck and he had to return to the station to get another key. A Customer Service Supervisor (S2) gave Complainant a discussion for her treatment of the Carrier Assistant.

3. S1 stated that, on September 29, 2014, she held an attendance discussion with Complainant because she called in sick September 24 and 25 and the next three days were her unscheduled days. S1 stated that she informed Complainant that her FMLA request was pending and that she needed to submit paperwork to the FMLA Office within 15 days. S2 stated that he gave Complainant an official discussion, on September 30, 2014, for not coming to work at her scheduled time, her office performance, and wasting time visiting the workstations of other carriers and a union steward without prior approval. S2 stated that as a supervisor it is his responsibility to ensure that carrier duties are performed efficiently.

4. S1 stated that Complainant has not had approved FMLA since January 2014 because she has not worked more than 1250 hours.

5. S1 stated that Complainant was late for work on September 30, 2014 so she presented her with a Request for or Notification of Absence form (PS-3971) to request leave for that missed time. S1 stated that Complainant refused to sign the PS-3971. S1 stated that she requires use of leave, rather than making up time, to cover tardiness. Also, S1 stated that she gets a weekly scan report and asks each carrier about missing scans.

6. The Agency provided the same information from (5) for (6).

7. S1 stated that she apologized to Complainant because she posted a safety talk notice and erroneously printed it on the back of Complainant's key indicator report3 as she was trying to recycle paper. S1 stated that Complainant's record was not posted publicly. The Postmaster (S3) stated that the Seattle Station recycles paper and communications materials and S1 erroneously printed a station document on the opposite side of a page of Complainant's attendance record. S3 stated S1 posted the paper at the time clock. S3 stated that she instructed S1 to shred sensitive materials from now on and apologize to Complainant.

Post-Investigation

Following 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 or an immediate final agency decision. Complainant requested the latter. On June 8, 2015, the Agency issued a final decision.

In the final decision, the Agency dismissed additional incidents pursuant to 29 C.F.R. � 1614.107(a). The Agency dismissed (1) and (2) as moot, stating that the LOW was rescinded and the Agency paid Complainant $17 under the grievance process for interruption of her break.4 The Agency dismissed (3) and (5) for failure to state a claim, stating that Complainant was not aggrieved. Just in case procedural dismissal was improper, the Agency used similar explanations to address the merits of those incidents. Summarily, the final agency decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant 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").

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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 Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on disability. The Agency stated that it issued Complainant a LOW for failure to be in regular attendance, did not deny Complainant an appropriate break, held discussions with Complainant about her unscheduled absences and performance, informed Complainant that she needed to contact the Agency FMLA Office to submit FMLA documentation, asked Complainant to use leave when she reported to work late, and posted Complainant's leave information in error. We conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

Further, to the extent that Complainant alleged disparate treatment, even if we assume that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected class.

Notwithstanding the above findings, we caution the Agency that its inadvertent posting of Complainant's Key Indicators Report at the station time clock was inappropriate. However, in this instance, we cannot find that the Agency violated the Rehabilitation Act as the posted document did not contain information about the medical condition or history of Complainant. See 29 C.F.R. � 1630.14(b)(1).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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. 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

December 15, 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.

2 We note that the Agency incorrectly numbered the dismissed incident as (5) in its Partial Acceptance/Partial Dismissal dated January 20, 2015.

3 The record contains an Employee Key Indicators Report, dated September 25, 2014, for Complainant, containing balances for her sick leave and annual leave; sick leave, annual leave, leave without pay, and FMLA leave used between January 14, 2013 and September 25, 2014; and indications whether the leave used was unscheduled. The last date indicated for leave usage is April 9, 2014. The Report also contains Complainant's employee identification number, entry on duty date, and whether an administrator conducted a return to work review when Complainant returned from leave usage.

4 We note, in her formal EEO complaint, Complainant asked to be made whole, reimbursement of lost leave, compensation for medical visits and emotional distress, and attorney's fees.

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