0120132588
10-16-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120132588
Agency No. 4F-913-0046-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 28, 2013 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 Part-Time Flexible (PTF) City Carrier at the Agency's Sunland Post Office in Sunland, California.
On August 13, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex, disability, and in reprisal for prior EEO activity when:
1. beginning December 6, 2011 and continuing, she was denied overtime;
2. beginning December 6, 2011 and continuing, management refused to provide PS Form 3996 to her for auxiliary assistance and refused to provide her with the FSS and DPS counts for her assigned route;
3. beginning December 6, 2011 and continuing, she was only allowed 5 minutes of office time when she returned from the street;
4. beginning December 6, 2011 and continuing, she was verbally harassed when management disrespected her regarding her sickness, accused her of disrespecting a lady in Store quest, threatened her job, took her in the office to discuss her performance, made false derogatory remarks about her and her work, yelled at her regarding her failure to follow instructions and her completion of the Ps Form 3971, followed her on her route, allowed PTF employees to case her assigned route, and allowed her co-workers to harass her;
5. beginning December 13, 2011 and continuing, she was harassed regarding her route when she had to deliver uncased parcels, management came out to the street and entered her vehicle without her being present, management moved her LLV, and management questioned her about her mail and her return time;
6. on December 27, 2011, she was charged Absent Without Official Leave (AWOL);
7. on December 29, 2011, she was issued a Notice of 7-Day Suspension for failure to follow instructions and failure to observe safe driving routes and regulations;
8. beginning January 2, 2012 through March 16, 2012, she worked less than 8 hours;
9. beginning January 21, 2012 and continuing through April 17, 2012, she was subjected to co-worker harassment and management failed to correct the situation;
10. beginning March 9, 2012 and continuing, she was charged AWOL;
11. on March 31, 2012, she was given a discussion and issued a Letter of Warning for failure to follow instructions/poor job performance/failure to be regular in attendance which was reduced in the grievance procedure to a 6-month Letter of Warning;
12. on April 25, 2012, she was issued a 7-Day Suspension for failure to follow instructions/unacceptable conduct, management came out to her route and took pictures of her parked LLV and harassed and threatened her about not following instructions;
13. on April 27, 2012, she was assigned to work in another office while an employee from another office worked in her office;
14. on May 15, 2012, management took pictures of her when she was off the clock on the dock;
15. on May 17, 2012, she was given a discussion regarding the May 15, 2012 incident;1
16. on May 19, 2012, management in the Rosemead office harassed her by leaving a voice mail on her phone;
17. on May 22, 2012, she was falsely accused of scribbling on the schedule and given a fact finding;
18. on June 12 and 13, 2012, she was not paid Family Medical Leave Act (FMLA);
19. on June 15, 2012, she was issued a Notice of 14-Day No Time off Suspension for failure to follow instructions/unacceptable conduct/failure to be regular in attendance/AWOL and threatened that if she didn't list, she would get fired;
20. on June 18, 2012, she was not allowed to clock in upon her return from the street;
21. on June 22, 2012, her schedule was changed to put her on the clock for the EEO meeting without notification;
22. beginning January 2, 2012 through April 3, 2012, management violated the national agreement when they failed to post routes for opt after they were vacant 5 days or more, she was denied union representation, management violated previous grievance decisions and the union failed to address management's behavior towards her;2
23. on April 14, 2012, management came out to her route questioning her performance; and
24. on or about March 20, 2012, as she left for the day management blocked her from behind and aggressively slammed the window and jerked the door handle.3
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On May 28, 2013, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of sex and disability.4 The Agency found, however, Complainant established a prima facie case of reprisal discrimination The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of sex, disability, and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex, disability, and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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. 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The
Officer-in-Charge stated that during the relevant period he was Complainant's supervisor. The supervisor stated that in regard to claim 1, he stated that because Complainant is a PTF, PTFs "are not guaranteed overtimes. Vacant routes are posted for opt PTF carriers are allowed to bid on the assignment if they so desire. The complainant was never denied her right to opt on vacant assignments. Management assigns overtime based on operational needs, service goals and contractual responsibilities."
Regarding claim 2, the supervisor stated that Complainant "was not refused 3996. She was provided with FSS/DPS counts when they are available."
Regarding claim 3, the supervisor stated that all carriers are expected to have 5 minutes to check their mail and put away their mail in the 3M case. Specifically, the supervisor stated "this is a reasonable expectation and it has been demonstrated during route counts and inspections to be sufficient time to perform these duties at the end of the day."
Regarding claim 4, the supervisor denied Complainant's allegation that management officials disrespected her concerning her sickness. With respect to Complainant's allegation that management accused her of disrespecting a lady in the Storequest [a private storage facility], the supervisor stated that a customer at the Storequest called and "stated the Complainant misdelivered the mail and was yelling at her while she was on the phone. I went out to investigate this, the customer next door, at a business that collects food for the less fortunate, came out to me to complain that the Complainant was going through some bags of their food. I discussed these issues with the Complainant regarding this unacceptable behavior."
With respect to Complainant's allegation that management threatened her job, the supervisor denied threatening Complainant's job "regarding the incident at Storequest. I did tell the Complainant that kind of behavior was unacceptable and could result in disciplinary action up to and including removal from the Postal Service."
Further, the supervisor acknowledged discussing Complainant's performance with her because she "consistently is unable to meet performance expectations. I have discussed these issues with her in my office." The supervisor stated that he did not make any derogatory remarks about Complainant or her performance.
With respect to Complainant's allegation that the supervisor yelled at her regarding her failure to follow instructions and her completion of the PS Form 3971, the supervisor denied it. Specifically, the supervisor stated "I have never yelled at the Complainant. I did instruct her to complete PS Form 3971 following an unscheduled absence. The Complainant did not want to fill out the form. She ultimately filled out the form incorrectly and incompletely."
The supervisor acknowledged observing Complainant delivering mail on her route. The supervisor further stated "I have observed all the carriers in Sunland on the street delivering mail. Employees can expect to be supervised at any time in the performance of their duties."
Moreover, the supervisor stated that Complainant is a PTF carrier and "does not hold an assignment. The Complainant did opt on route 2 at some time. The Complainant was not able to complete this assignment within hours, or the time earned on any day. Auxiliary assistance was given to the Complainant, both in the office and on the street to get the mail delivered in a timely manner...the Complainant did bring to my attention that other employees were making derogatory comments to her. I did not hear these comments or who made them on the work room floor. I asked the Complainant to write me a statement. She refused to do so or identify which employees made the alleged comments. The Complainant told me she would not write a statement against her "homies." I did conduct a stand-up on treating each other with dignity and respect in the workplace."
Regarding claim 5, the supervisor stated that there were numerous occasions he instructed Complainant "to pull down a route and sort the parcels and smaller items as she loads her vehicle in an attempt to have the Complainant begin deliver of her assignment earlier so she should return to the office earlier." The supervisor further stated that he never entered Complainant's vehicle without her being present "although management has the right to enter a postal vehicle at anytime. When doing street observations I check Postal vehicles to ensure they are properly secured. I have found the Complainants vehicle unlocked when she has been away from the vehicle. When this has happened, I wait until he Complainant returns to the vehicle and let them know the vehicle was unsecured and mail was placed at risk."
Further, the supervisor acknowledged moving Complainant's LLV because she "parked it improperly in the parking lot and then gone home." With respect to Complainant's allegation that management questioned her about her mail and return time, the supervisor stated it is management's responsibility "to address the Complainant's performance and I have done so with the Complainant in the past. The Complainant is often unable to meet office and street expectations based on workload and I have questioned her about this on several occasions."
Regarding claim 6, the supervisor stated that because Complainant did not report to work as scheduled on December 27, 2011, he charged her with AWOL. The supervisor further stated that Complainant was not issued disciplinary actions for her absence.
Regarding claim 7, the supervisor, the acting supervisor and the Postmaster stated they do not recall issuing Complainant a Notice of 7-Day Suspension for failure to follow instructions and failure to observe safe driving rules and regulations.
Regarding claim 8, the supervisor stated that during the relevant period, all of his PTFs "worked a variety of hours some worked less and some worked more. The majority of days the Complainant worked in excess of 8 hours...this decision is made based on operational needs, service goals and contractual obligations on a daily basis."
Regarding claim 9, the supervisor stated during the relevant period, Complainant never notified him that she was being subjected to harassment and a hostile work environment by her co-workers and management took no action.
Regarding claim 11, the supervisor stated that on March 31, 2012, he gave Complainant a discussion concerning her performance the day prior. Specifically, the supervisor stated that Complainant was unable "to make job performance expectations on a daily basis. [Supervisor] issued the Letter of Warning to the Complainant that same day" for failure to follow instructions/poor job performance/failure to be regular in attendance.
Regarding claim 12, the supervisor stated that on April 2, 2012, he observed Complainant on her route. When the supervisor checked Complainant's vehicle, the left side door was unlocked. The supervisor stated that he then continued to observe Complainant "deliver mail. She drove to Jack on the Box for lunch. When she parked her Postal vehicle in the parking lot, it was not parked straight in the stall and was very close to the driveway. I thought this was unsafe as other customers driving in might strike the Postal Vehicle. As the Complainant claims everything I say is a lie, I took pictures as proof of what I saw. The Complainant then continued driving to her next mail delivery. However, she did not get out of her Postal vehicle. Instead she was on her cell phone, with the engine running, not wearing her seat belt, with the vehicle still in drive."
The supervisor stated that he instructed Complainant to hang up her telephone and deliver the mail, but she did not follow his instructions. The supervisor stated that Complainant continued using her cell phone for over an hour "until a Postal Inspector was able to talk to her and get her to calm down. By this time, I had arranged for other carriers to deliver the mail the Complainant still had to deliver. The Complainant then drove back to the office and left for the day. Her behavior resulted in a 7 Day Suspension issued to the Complainant by [Supervisor]." Furthermore, the supervisor stated that he never harassed or threatened Complainant.
Regarding claim 13, the supervisor stated that a review of the Postal records showed that Complainant worked at Sunland on April 27, 2012 and "not in another office. Records do not show another employee worked in Sunland that day. There may have been another day that the Complainant was scheduled to work in another office, and subsequently Sunland had unscheduled absences that needed to be covered. As I recall, the Complainant volunteered to go to the other office."
Regarding claims 14 and 15, the supervisor denied taking pictures of Complainant when she was off the clock on May 15, 2012. Specifically, the supervisor stated that during the relevant period, an annual food drive was taking place, and "residual food was still being picked up by the carriers. When I observed the Complainant on the street that day, I saw she was eating cereal. Later that day, I saw some food the Complainant had brought back from the street. I saw another box of the same cereal and questioned the Complainant about the cereal I saw her eating on the street. She admitted that she was eating from a box of cereal donated to the food drive. I took pictures of the cereal box, not the Complainant, as proof of her actions. The Complainant received a discussion or her actions."
Regarding claim 17, the supervisor stated that he believed Complainant scribbled on the schedule because the comments "were directly related to recent events involving the Complainant. The scribbling appears to be in the Complainants handwriting. As it is inappropriate for anyone other than Management to make comments on the schedule, a fact finding was conducted to give the Complainant an opportunity to explain her actions." The supervisor stated that Complainant was issued a 14-Day Suspension for her behavior including the writing on the schedule.
Regarding claim 18, the supervisor stated that Complainant was not paid FMLA because "she did not submit this request to me. No response was received approving FMLA leave for her absence, therefore the leave was not entered as FMLA protected leave. No disciplinary action was taken regarding this leave."
Regarding claim 19, the supervisor stated that a named supervisor prepared the Notice of 14-Day No Time Off Suspension but he was not available when Complainant returned to the office so he gave it to her. The supervisor stated because Complainant has a history of falsely accusing him of lying and harassing her, he asked the Postmaster to be present when he gave Complainant the Notice of 14-Day No Time Off Suspension. The supervisor stated as he explained to Complainant why she was being given the suspension, she "was fidgeting, talking under her breath, and generally not paying attention to what I was saying. [Postmaster] stepped in and spoke to the Complainant. [Postmaster] told the Complainant it was important for her to listen to me as her behavior had been unacceptable on several occasions, that she had received prior discipline for inappropriate behavior and that she needed to correct her behavior or she could receive further discipline, up to and including removal. Neither myself [nor] [Postmaster] was threatening the Complainant, but just trying to make her understand the severity of this most recent Suspension."
Regarding claim 20, the supervisor stated that on June 18, 2012, Complainant was not allowed to clock in upon her return from the street. Specifically, the supervisor stated that because Complainant "has in the past, used her time card to clock out and then leave the building without authorization. She has done this to both me and [Supervisor]. When we have attempted to talk to her, she states she is off the clock and rungs out the back door. As I wanted to make sure this did not happen on June 18, 2012, until I had given her the suspension, I removed the Complainant's time card and when she returned from the street, I asked her to report to my office. When I was done talking to her, she was given back her time card. She clocked out and left."
Regarding claim 21, the supervisor stated that on June 22, 2012, Complainant was scheduled to report to work at 8:30 a.m. and her EEO meeting was scheduled for 8:30 a.m. The supervisor stated that Complainant clocked in at 8:30 a.m. but she was not in her carrier uniform. The supervisor stated that following the mediation, he instructed Complainant "to clock out, go home and get her uniform and return to work. The Complainant clocked out at 12:26. She did not report back to work until 16:04. The Complainant's schedule was never changed for this day."
Regarding claim 23, the Postmaster stated that she was with the supervisor on Complainant's route when he asked the Complainant how much longer she needed to complete her assignment or what time she would be back in the office, "she would not give a straight answer. She would tell [supervisor] he was taking up too much of her time, she had to waste time calling in, all his questions were keeping her from her doing her job. I attempted to ask the Complainant direct questions regarding how much work she had left and what time she would be back and told her that her responses to [supervisor] were unacceptable. Ultimately, she answered our questions, but it was extremely difficult to get a straight answer from her. It was also very time consuming. The Complainant would still not return to the office on time and said it was because we took up all her time on the street. This happened a few times."
Regarding claim 24, the supervisor stated that on April 14, 2012, he went out to check Complainant on her route because "she called and said she wasn't feeling well. We wondered where she was because 15 minutes had elapsed. As I went looking for her, she was on the way back. As I was approaching her in the alley, I was trying to get her attention. I parked next to her truck. She ran into her truck and was rocking back and forth, clutching her chest. I was asking if she was OK and she ignored me. It looked like she was hyperventilating. I called the postal inspectors and asked what I should do, I had parked behind her because I was concerned about her. They told me to stop trying to talk to her and leave her alone. I moved my vehicle and went into the building. At no time I was hostile toward her. I was just concerned about her safely. She left."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her sex, disability or prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 16, 2014
__________________
Date
1 The record reflects that the Agency inadvertently identified the date of the alleged discriminatory event as May 14, 2012 instead of May 15, 2012.
2 The record reflects that in its September 6, 2012, the Agency issued a partial dismissal dismissing claim 22 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant did not expressly challenge this dismissal on appeal, and we will not further consider claim 22 herein.
3 The record reflects that claims 23 and 24 were later amended to the instant formal complaint. The record further reflects that during the investigation, Complainant withdrew claims 10 and 16.
4 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
5 On appeal, Complainant does not challenge the September 6, 2012 partial dismissal issued by the agency regarding claim 22. Therefore, we have not addressed this issue in our decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120132588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
11
0120132588