0120150034
03-23-2017
Tiffanie S,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tiffanie S,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal Nos. 0120150034, 0120160058, & 0120160860
Agency Nos. 4G350004814, 4G350003815, & 1G351005015
DECISION
On September 26, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 26, 2014, final decision (FAD1) 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. On September 14, 2015, Complainant filed a second appeal pursuant to � 1614.403(a), from the Agency's August 11, 2015 final decision (FAD2) concerning her EEO complaint alleging employment discrimination in violation of Title VII and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. On December 9, 2015, Complainant filed a third appeal, this time from the Agency's November 5, 2015 final decision (FAD3) concerning her EEO complaint alleging employment discrimination in violation of Title VII and the Rehabilitation Act. The Equal Employment Opportunity Commission (EEOC or Commission) deems the appeals timely and accepts them pursuant to 29 C.F.R. � 1614.403. The Commission further exercises its discretion to consolidate these appeals for joint processing pursuant to 29 C.F.R. � 1614.606.
BACKGROUND
At the time of events giving rise to these complaints, Complainant worked first as a Complaints and Inquiry Clerk and then as a General Clerk at the Agency's Birmingham Main Post Office facility in Birmingham, Alabama.
On March 28, 2014, Complainant filed an EEO complaint under Agency No. 4G350004814, alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. Since October 4, 2013 and continuing, Complainant has been assigned a disproportionate work load in her office;
2. Complainant was denied leave from January 2-6, 2014;
3. Since January 6, 2014 Complainant's work has been unfairly scrutinized including but not limited to being questioned regarding the status of her cases, her breaks examined, being watched while she worked, and co-workers asking about her location;
4. On January 6, 2014 Complainant was given an investigative interview; and
5. On March 14, 2014, Complainant's manager (M) rummaged through files on Complainant's desk and removed files from Complainant's work area.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). FAD1 concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Decision found that Agency officials gave legitimate nondiscriminatory reasons for their actions and that Complainant failed to establish that these reasons were pretextual.
Complainant filed a second EEO complaint on February 2, 2015, under Agency No. 4G350003815, alleging that the Agency discriminated against her on the basis of Disability (Depression/Panic Disorder2) and reprisal for prior protected EEO activity under the Rehabilitation Act when, from August 2, 2014:
6. M watches Complainant, gets in her personal space, unfairly scrutinizes her work and has tried to pad her personnel file with discipline;
7. Complainant has been assigned a disproportionate amount of the work load in her office;
8. On November 14, 2014, documents relating to prior discipline issued to Complainant were left on the copier in a public area;
9. On December 7, 2014, Complainant's desk and computer monitor were moved; and
10. On December 12, 2014, Complainant's leave request was denied.
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 AJ but Complainant failed to respond. The Agency subsequently issued FAD2 pursuant to 29 C.F.R. � 1614.110(b). FAD2 concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, FAD2 found that Agency officials gave legitimate nondiscriminatory reasons for their actions and that Complainant failed to establish that these reasons were pretextual and further found that any harassment was not severe or pervasive enough to alter the conditions of Complainant's employment.
Complainant filed a third complaint on October 20, 2015, under Agency No. 1G351005015, alleging that the Agency discriminated against her on the basis of Disability and reprisal for prior protected EEO activity under the Rehabilitation Act when:
11. On July 29, 2015 M invaded Complainant's personal space when she came around behind Complainant's desk to ask her a question;
12. On July 30, 2015, Complainant was instructed to come to work and clock into operation 767 before she went to take a test; and
13. On August 18, 2015, management did not abolish Complainant's vacated position and posted the job for bid.
The Agency dismissed the claims for failure to state claim, finding that the actions alleged were insufficiently severe enough to state a claim of hostile work environment.
ANALYSIS AND FINDINGS
As these are appeals from decisions issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decisions are 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").
Complainant alleges the following: she has been assigned a disproportionate work load in her office; she was denied leave from January 2-6, 2014; her work has been unfairly scrutinized; on January 6, 2014 she was given an investigative interview; (M) rummaged through files on Complainant's desk and removed files from Complainant's work area; M watches Complainant, gets in her personal space, and has tried to pad her personnel file with discipline; on November 14, 2014, documents relating to prior discipline issued to Complainant were left on the copier in a public area; on December 7, 2014, Complainant's desk and computer monitor were moved; on December 12, 2014, Complainant's leave request was denied; on July 30, 2015, Complainant was instructed to come to work and clock into operation 767 before she went to take a test; and on August 18, 2015, management did not abolish Complainant's vacated position and posted the job for bid.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Legitimate Nondiscriminatory Reasons
With regard to Complainant's allegation that she had been assigned a disproportionate amount of the office work load, we find that M provided a legitimate nondiscriminatory reason for the alleged action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). M averred that:
I assigned very little of the complainant's workload directly. The majority of the work is electronically assigned via eCustomerCare[,] an electronic system. . . . The system routes cases to the responsible offices and/or district consumer affairs staff, based on who is in the office and what type of case assignments selected [sic]"
Report of Investigation for Agency Case No. 4G350004814 (ROI-1), Affidavit B p. 2.
M further averred that another coworker (CW) may have been assigned fewer cases than Complainant, but cases were:
Less than 25% of [CW]'s work load. She retrieves, catalogs, and distributes returns and stores loss in the mail (LIM) items daily. She collects LIM monies and postage. The money she logs and deposits. Postage is collected, logged and destroyed [sic] via [Agency] guidelines. Items valued over $25.00 are cataloged and forwarded to the Mail Recover Center. Items under $25.00 are cataloged, stored and retained for various periods and handled per attached guide. [CW] answers telephone [sic], enter [sic] and handle customer inquiries during daily staff assigned administrative time and when other staff members are out of the office on leave. [CW] also monitors web cameras from across the district and distributes alerts to field offices on a daily basis. The Complainant performs none of the actions described above.
Id., p.8.
With regard to Complainant being denied leave from January 2 through 6, 2014, M signed the denial slip and wrote on the form "services needed, 2 vacancies would leave only one employee in the office." Id. pp. 10, 42. With regard to Complainant's work being unfairly scrutinized and M subjecting her to an investigative interview, M denied that her scrutiny of Complainant's work was unfair but acknowledged that she did: scrutinize her work; question her regarding the status of her cases; examine Complainant's use of breaks; and watch Complainant while she worked. See id., p. 12. M averred that this was because Complainant:
[H]ad an abundance of overdue cases. . . . [O]nly 42.04% were closed within the service level agreement. . . . As I monitored her daily workload performance, I noticed she wasn't clearing cases timely so I set aside some time to observe her work practices and provided instructions to enhance her work performance. . . . I instructed all employees to notify me when leaving their desk. When an employee exceeds the allocated 15 minutes for break, I take appropriate action. I must ensure timely and quality resolutions to customer inquiries. Complainant is treated no differently than other employees in the work unit.
Id.
The notes of the investigative interview M gave Complainant show that M questioned Complainant about her performance generally, as well as asking about her progress with regard to specific cases and assignments. See Id., pp. 37-8. With regard to M rummaging through files on Complainant's desk and removing files from Complainant's work area, M averred that she had received an inquiry about a customer complaint and that she:
[C]ould not locate information in the eCC case file, could not locate file on filing shelves, asked [Complainant] and she indicated she hadn't had time to file documents. Advised [Complainant] I needed the information immediately. She said they were somewhere on her desk and I assisted in looking for the information needed. When I located the folders with the related information, I retrieved the folders and took back to my desk to respond to inquiry.
Id., pp. 17-8.
With regard to the allegation that M has tried to pad Complainant's personnel file with discipline, M averred that "I have given her prior discipline. She left work twice without notification and the others were performance based." ROI for Agency Case No. 4G350003815 (ROI-2), Affidavit B, p. 5. With regard to documents about Complainant's prior discipline being left on a photocopier in a public area, M denied any knowledge of the incident. See id., p. 12. With regard to the denial of Complainant's December 12, 2014 leave request, M averred that:
I do not recall any specific leave request submitted on December 12, 2014. All leave for December was initially denied per the APWU contract agreement. However, I advised all employees they could resubmit as we got closer to the date. Employees that resubmitted were granted leave as the work load and staff would allow. . . . I checked the file and do not see a leave slip submitted on December 12, 2014.
Id., p. 18.
The Agency having articulated legitimate nondiscriminatory reasons for the most severe of the allegations made by Complainant, the burden next shifts back to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's actions were based on prohibited considerations of discrimination, that is, its articulated reasons for its actions were not its true reasons but a sham or pretext for discrimination. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Burdine, 450 U.S. at 252-53; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
Pretext.
Following a review of the record we find that Complainant has failed to meet her burden with regard to being assigned a disproportionate work load in her office, twice being denied leave, her work was unfairly scrutinized, she was given an investigative interview, M rummaged through files on her desk and removed files from her work area, and when M tries to pad her file with discipline.
With regard to her work load, Complainant averred that M:
[H]as allowed her friendship with [CW] to negatively impact the work environment. She has shown favoritism towards [CW] in the manner in which work is distributed. [M] treats [CW] differently than myself as it relates to work distribution. I am assigned a greater number of eCC cases, and [CW] does not receive Congressional inquiries, Office of the Inspector General inquiries, Headquarters inquiries, Postmaster General (PMG) inquiries, answer the main phone line, and perform other duties on a regular basis. [M] has allowed [CW] to perform the duties of a Claims and Inquiry Clerk. This job has been abolished and as such, no such duties should be performed. [M] is allowing [CW] to act as a relief for the Complaints and Inquiry Clerk instead of assuming and performing the duties of the position of Complaints and Inquiry Clerk.
ROI-1, Affidavit A, p. 30.
Complainant argues on appeal that M and CW are friends and that M "does not require [CW] to perform the job she was hired to perform, which is as a Complaints and Inquiry Clerk. [M] is allowing [CW] to perform the duties of the Claims and Inquiry Clerk position, which no longer exists." Complainant's Appeal Brief for Agency Case No. 4G350004814 (Complainant's Appeal Brief 1), p. 5. Complainant further argues that:
[M] also testified that all Complaints and Inquiry Clerks are assigned the same type of cases with the exception of [CW]. There should be no exception. [CW] is a Complaints and Inquiry Clerk. She too should be assigned the same type of cases as the other Complaints and Inquiry Clerks. With the exception of [CW], All [sic] other Complaints and Inquiry Clerks receive the following types of cases [cases listed]
Id., p. 7 (citation omitted)
Complainant thus weakens her argument that she has been treated differently because of her prior EEO activity. Instead, Complainant indicates that all similarly situated coworkers in her position are treated differently than CW because of a personal friendship between CW and M. Nor does Complainant address M's argument that CW performs other functions that Complainant does not perform. While Complainant may feel M should manage CW's work assignments differently, she has not shown M's articulated reason for her action is a pretext to mask reprisal or otherwise shown she has been assigned additional work due to reprisal.
With regard to Complainant being denied leave from January 2 through 6, 2014, Complainant argues that [M]:
[S]tated my leave was denied because there were two vacancies and my being off would leave one person in the office. This is not true. Officially, there were not two vacancies. [CW2] was announced in a meeting that she had been awarded the Complaints & Inquiry Clerk position. Announcement occurred on or about October 11, 2013. She was officially awarded the position on or about November 16, 2013. . . . I called [M] and explained it was after December which she said is the month no leave would be taken. I explained my request was for January and I thought it would not be an issue and it would be granted. [M] stated my request was for the middle of the work week and the detailed employee [CW] would not be returned to her detail in Consumer Affairs, also known as Consumer and Industry Contact Office, during the middle of the week. But contrary to this statement, [CW] returned to our office on January 2, 2014. Ironically, this is the same day I requested my leave to begin.
ROI-1, Affidavit A, p. 8.
Complainant further argues on appeal that M:
Contrary to [M]'s reason given that [CW2] would have been available to report to Consumer Affairs on January 11, 2014, [M] allowed CW2 to remain on detail. [M] failed to direct her to come to Consumer Affairs and fulfill her duties In her position as a Complaints and Inquiry Clerk. She was not told that her services were needed as I was. [M] did not direct [CW2] to report to her position on December 14, 2014. . . . [CW2] never reported to Consumer Affairs to fulfill her duties as a Complaints and Inquiry Clerk, not on December 14, 2014, nor January 11, 2014, nor ever.
Complainant's Appeal Brief 1, p. 9.
Complainant argues that if the workload was so heavy that her own leave on January 2-6, 2014 had to be denied, M should have "exercised her management authority and directed [CW2] to perform the duties of her bid as a Complaints and Inquiry Clerk because her services were needed, and report to her bid on December 14, 2014, but she did not." Id. Such an argument, however, does not establish that M's articulated reason for denying M's leave was a pretext. Complainant admits CW2 was still on detail at the time Complainant requested leave. As such, M's contention that the reason she denied Complainant's leave was because the office was understaffed is supported by Complainant's own arguments. Complainant states "officially, there were not two vacancies" in the office, but since Complainant admits CW2 was still on detail, in practice there was at least one, if not two, vacancies for as long as CW2 remained on detail. While Complainant believes M should have ended CW2's detail so as to enable the office to be better able to handle the workload, M's decision to not do so does not establish that Complainant was treated differently based on reprisal.
With regard to Complainant's work being unfairly scrutinized and M subjecting her to an investigative interview, Complainant argues on appeal that "If [M] would have utilized her authority and directed [CW2] to report to her official position, the workload would have been more evenly distributed and I would not have been overloaded and overburdened with cases and a greater number of cases could have been within the Service Level Agreement." Complainant's Appeal Brief 1, p. 17. Such an argument does not establish that M's articulated reason for her action was a pretext to mask reprisal.
With regard to M rummaging through files on her desk and removing a file from her work area, and the allegation that M has tried to pad Complainant's personnel file with discipline, on appeal, Complainant disagrees with M's actions but does not substantively address M's articulated reasons for those actions.
With regard to Complainant being denied leave on December 12, 2014, Complainant maintains that CW1 was granted leave while she was not. See ROI-2 Affidavit A, p. 40. The record shows that Complainant requested FMLA leave and that it was denied and the note on the leave slip says "Documentation requested for pre-approved sick leave." See id., p. 65. Since Complainant has alleged that M showed favoritism towards CW1 because they were friends, the fact that CW1 was granted leave while Complainant was not does not establish that Complainant was treated differently based on disability and reprisal.
Given the above, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that she was subjected to reprisal or discrimination based on disability when she was assigned a disproportionate work load, twice denied leave, her work was unfairly scrutinized, she was given an investigative interview, M rummaged through files on her desk and removed files from her work area, and M tries to pad her file with discipline. Furthermore, we find under the standards set forth in Harris v. Forklift Systems, Inc. that these incidents may not support Complainant's claim of hostile work environment based on our finding that Complainant failed to establish that either of the actions taken by the Agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Complainant's harassment allegations therefore rest on the following incidents: on November 14, 2014, documents relating to prior discipline issued to Complainant were left on the copier in a public area; on December 7, 2014, Complainant's desk and computer monitor were moved; on July 30, 2015, Complainant was instructed to come to work and clock into operation 767 before she went to take a test; and on August 18, 2015, management did not abolish Complainant's vacated position and posted the job for bid.
Following a review of the record we find that, even assuming the truth of each of these allegations, Complainant has failed to show that she was subjected to unwelcome verbal or physical conduct involving her protected classes, that the harassment complained of was based on her statutorily protected classes, and that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, with regard to Complainant's desk and computer monitor being moved; being instructed to come to work and clock into operation 767 before Complainant went to take a test; and management's alleged failure to abolish Complainant's vacated position and instead posting the job for bid, we find that Complainant has not shown she incurred a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy, Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Nor has Complainant shown that the actions complained of are reasonably likely to deter the charging party or others from engaging in protected activity. See EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we Affirm FADs 1, 2 & 3.
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 23, 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 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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