Renee S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Aug 6, 2020

2019004161 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renee S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019004161 Agency No. 4K-300-0182-18d DECISION On May 14, 2019, 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 April 12, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Bulk Mail Technician, Grade PS-7, at in the Agency’s detached Business Mail Entry Unit (BMEU) contract facility in Duluth, Georgia. On June 4, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), disability (mood anxiety, ADHD and PTSD), and in reprisal for prior protected EEO activity (Agency No. A4K- 300-0134-16) when, since January 23, 2018, Complainant was not permitted to return to her bid assignment. 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 201900461 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before EEOC Administrative Judge (AJ). When Complainant did not request an AJ hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 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”). On appeal, Complainant submitted four letters from her psychiatrist describing her symptoms. In a letter dated January 31, 2019, Complainant’s psychiatrist stated that Complainant “remains psychologically disabled for work and this status is not expected to change for the foreseeable future.” Based on this evidence, we presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. A fair reading of the complaint in this case is that Complainant raised a claim of discriminatory harassment when she asserted management prevented her from returning to her bid position at the detached BMEU contract facility. 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, her race, sex, disabilities or prior protected activities. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Even if we assumed that Agency's excluding Complainant from her preferred detached BMEU contract facility were severe or pervasive, Complainant nevertheless has not shown the Agency actions were based on her protected classes. To the contrary, the evidence showed that management made a reasonable decision to transfer Complainant to work at a different Agency BMEU facility. This Agency action was legitimate exercise of supervisory discretion, given the circumstances of Complainant’s actions, as delineated below. 3 201900461 On March 29, 2017, Complainant had barricaded herself in her office at the detached BMEU contract facility because she did not want to talk to her visiting supervisor. As a result of that incident, the District Manager transferred Complainant out of that detached BMEU contract facility. The private, offsite management of the facility had indicated that it could no longer trust Complainant in the building, due to openly observable aggressive behavior. The District Manager directed Complainant to work at one of two alternative Atlanta area Agency BMEU facilities. Complainant refused to do so. Instead, Complainant insisted on returning to the detached BMEU contract facility. The District Manager continued to order that Complainant work at one of the other Agency BMEU facilities. Complainant remained noncompliant. In sum, Agency management made a reassignment decision that Complainant declined to accept. We remind Complainant that Title VII is not a civility code. Title VII forbids objectively offensive behavior alters the conditions of Complainant's employment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Based upon our analysis of the record evidence, we find this was a matter of personality conflicts and general workplace tribulations as opposed to objectively offensive harassment. In sum, the evidence does not establish that the Agency subjected Complainant to a discriminatory hostile work environment as she had alleged. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. 4 201900461 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 August 6, 2020 Date