0120141976
10-07-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120141976
Agency No. 4E-640-0038-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 26, 2014 final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Part-Time Flexible (PTF) Sales/Service Distribution at the Agency's Fair Grove, Missouri Post Office.
On May 8, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of sex (female) and in reprisal for prior EEO activity when:
1. on February 11 - 28, 2013 and March 1 - 4, 2013, she was not permitted to work while wearing a medical boot and her leave was marked as unscheduled. Further, Complainant was asked to provide additional documentation clearing her to work for these days even though she had already been cleared with no restrictions;
2. on May 14, 2013, the Postmaster made derogatory/demeaning statements about her job performance when giving her a new PO Box Standard Operating Procedure (SOP);
3. on May 20, 2013, a misdelivery log was posted on the mail case she uses;
4. on August 14 and 27, 2013, the Postmaster made derogatory/demeaning statements when she stated "despite what is going on here, I expect you to give excellent customer service," and "I came to see if the lobby doors were open or closed in this office the SOP is keep it open." Complainant alleged that she is micromanaged and on a daily basis, the Postmaster changes her work standards; and
5. on August 26, 2013 and September 5, 2013, she was subjected to a Pre-Disciplinary Interview (PDI) and during the PDI, the Postmaster threatened to reduce her work hours.1
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 March 26, 2014, 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 reprisal discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of sex 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 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. Regarding claim 1, the Postmaster stated after consulting with the Agency's District Nurse and Labor Relations concerning Complainant's medical boot on February 11, 2013, she informed Complainant that she could not return to work "until she provided a proper medical clearance to wear a CAM medical boot and use a roll-about scooter while at work." Specifically, the Postmaster stated that on February 11, 2013, Complainant reported to work with a CAM medical boot and roll-about scooter which she "had not informed me of her medical condition prior to reporting for duty, and had been working for approximately 30 minutes before I saw the CAM medical boot and roll-about scooter. I was unsure if [Complainant] could safely perform her duties." The Postmaster stated at that time she did not know anything about Complainant's CAM medical boot which "went up to her knee."
The Postmaster stated that on February 12, 2013, she sent a letter to Complainant "explaining that her doctor needed to verify that she could physically perform her duties without harm to herself or others. On February 15th [2013] , I told [Complainant] that I wanted to keep her safe, and that I couldn't imagine her being on duty by herself with a boot and scooter and someone bringing a 70 lb. parcel to the window and her being able to handle that safely. But, that if her doctor cleared her for duty answering the questions the USPS had asked, that she would be able to come back, even that afternoon if they faxed the clearance to us. I also told her that the USPS had the contractual right to require medical clearance."
Further, the Postmaster stated that on February 16, 2013, Complainant provided the medical documentation but it "did not meet the requirements that the district nurse had asked for, after consulting with the district nurse and Labor Relations, I again asked for proper medical clearance. I marked her sick leave as unscheduled from February 11-15th and March 2nd and 4th." Specifically, the Postmaster stated that while waiting for Complainant to provide the proper medical documentation, she marked her leave as "unscheduled each day until Friday, February 15th because I didn't know day to day whether she would be returning to duty or not."
The Postmaster stated that on February 15, 2013, Complainant informed her that it could take weeks for her to see her doctor and "that she could be off on sick leave until then. At that point I began marking her sick leave as scheduled and staffing the office as if she would not be back for a while." The Postmaster stated that on February 23, 2013, Complainant returned to work with a medical clearance that stated that she could safely perform her duties until March 2, 2013.
The Postmaster further stated that the District Nurse told her that Complainant was required to get an updated medical clearance to clear Complainant for duty after March 2, 2013. The Postmaster stated after giving Complainant "a copy of the medical clearance received on February 21st and wrote on it to show her what the district nurse was looking for. [Complainant] failed to provide the updated medical and did not let me know until 5PM on March 1 that she was not bringing it, so I marked her as unscheduled for March 2nd and March 4th."
Furthermore, the Postmaster stated that when Complainant returned to work on February 23, 2013, she said that she did not want her leave to be marked as Family Medical Leave Act (FMLA) leave "so I went in and changed it to non-FMLA leave. I did not change the scheduled/unscheduled designations of the February 11-22nd dates. After a discussion with APWU on an unrelated sick leave incident, in an attempt to bargain in good faith, later in March I changed the March 2nd & 4th unscheduled sick leave to scheduled sick leave."
Regarding claim 2, the Postmaster acknowledged presenting a new PO Box Standard Operating Procedure to Complainant but stated that she did not make any derogatory/demeaning statements about Complainant's performance. Specifically, the Postmaster stated that she told Complainant "that I wanted to clarify the expectations and provide additional training for the PO Box Section. I asked her to read and sign it and ask me if there were anything that she did not understand or that she needed clarification. She became upset and asked to see a steward. I told her that was fine, and explained that we needed to do a better job of providing service to our customers, that there were far too many mis-throws in the PO Box Section and I wanted to make sure she understood what was expected of her, that it is upsetting to me when I go around town and [receive a] customer complaint about their PO Box Deliver."
Further, the Postmaster stated that when Complainant handed the PO Box Standard document back to her, she asked Complainant "to sign it if she understood everything that was being asked of her. She asked if I was making her sign it, if that was a direct order, and I told her 'yes.' She signed the SOP stating '[Postmaster] gave me a direct order that I had to sign this - signing under protest.'"
Regarding claim 3, the Postmaster acknowledged putting a misdelivery log "on the side of the clerk's mail sorting case that is used by [Complainant], myself and any other clerk who helps sort mail." The Postmaster further stated that she posted the log "as a reminder of what mail had been being mis-sorted in order to help prevent mistakes. It was not in a prominent place, it was next to where the 5 digit scheme was posted in a spot mostly utilized by myself and any clerk sorting mail. I did not put a name on the log."
Regarding claim 4, the Postmaster denied making derogatory/demeaning statements towards Complainant on August 14 and 27, 2013. The Postmaster stated "I never used the wording that I despised what is going on here, but something did happen on August 9, 2013 that could be what is referred to by this allegation." Specifically, the Postmaster stated that on August 9, 2013, Complainant opened the office but "did not follow proper procedure by asking the HAZMAT questions when accepting a parcel while working the window. After he [a customer] left, I told her that I did not hear her ask the HAZMAT questions (which are required by law for Aviation Security purposes) Then, I showed her a print out of the tracking from a piece of Express Mail from the previous day that had not been properly scanned as 'Attempted' when she sorted the mail. I told her that she had written it down on our tracking log, had put a notice in the proper PO Box, but there was no scan of 'attempted.' She replied 'I attempted it.' I told her that the scan had to be done, she started walking away and said 'whatever...' I told her regardless of what was going on around here (our post office) I expected excellent service."
Further, the Postmaster stated that on August 27, 2013, she informed Complainant "that I have had customers complaining that the retail lobby door was shut when I wasn't there (they said it made it look like we weren't open), so I had to stopped by to see if it was true. The door was shut, just as customers had told me, I told [Complainant] that the SOP for this office is that the door should remain open any time the office was open."
Moreover, the Postmaster stated that none of her employees, including Complainant, "are subjected to derogatory/demeaning statements, nor micro-managed. I do require all employees to follow SOPs, and change processes as needed as the processes within the Postal Service change. The work standards of safety and excellent customer service do not change for any employee."
Regarding claim 5, the Postmaster stated that she gave Complainant a PDI on August 26, 2013 but "there was no PDI on September 5th. I did not threaten to reduce the Complainant's work hours." The Postmaster stated that the reason for giving Complainant a PDI on August 26, 2013 was based on her "failure to scan an Express Mail as attempted."
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 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.
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 7, 2014
__________________
Date
1 The record reflects that claims 2 - 5 were later amended to the instant formal complaint.
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0120141976
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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