U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * MELLISSA F.,1 COMPLAINANT, v. MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY. Appeal No. 0120141697 Hearing Nos. 530-2012-00144X, 530-2013-00106X Agency Nos. 1C-081-0050-11, 1C-081-0061-12 November 12, 2015 DECISION On April 4, 2014, Complainant filed an appeal from the Agency's March 6, 2014 final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. BACKGROUND Complainant worked as a Mailhandler at the Agency's Processing and Distribution Center in Bellmawr, New Jersey. On September 19, 2011, she filed EEO Complaint No. 1C-081-0050-11, in which she alleged that a number of management officials at that facility had subjected her to various acts of discrimination and discriminatory harassment between June and August 2011 because of her race (African American), sex, disability (residual effects of on-the-job injury to her right hand), and previous EEO activity. On May 31, 2012, she filed EEO Complaint No. 1C-081-0061-12 in which she identified additional incidents of discrimination and discriminatory harassment that allegedly occurred between March and May 2012. The Agency investigated both complaints separately and thereafter notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).2 Pursuant to Complainant's timely request, the AJ consolidated the two complaints and held a hearing on June 4, June 19, and July 1, 2013. On January 31, 2014, the AJ issued her decision. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant initially alleged that one of the District Operations Managers at the Processing Center (M1) publicly berated her on June 4, 2011, and again on June 10, 2011. IR1 151-52. Complainant admitted that she was listening to music on her cell phone on June 4, 2011, and that M1 thought she was talking on her cell phone while working. HT 306-07, 372-73. M1 acknowledged that this was the case and stated that he merely told her to get off her cell phone, which she was not allowed to have on the workroom floor. IR1 238. On June 10, 2011, M1 had assigned Complainant to a particular task, but the Floor Supervisor had given her something else to do. When M1 saw this, he told Complainant in a loud voice that she was out of her work area. HT 309-310. Complainant also alleged that in June 2011, M1 had singled her out with regard to using earphones. Complainant testified that she was wearing her earphones around her ears while she was operating power equipment, but was not actually listening to her cell phone. She also testified that a 204B Acting Supervisor (AS) had informed her that M1 wanted her to take her earphones off. Complainant did so without protest. HT 307-08, 439-40. The Agency had a policy requiring that employees who were working with and around power equipment should not have earphones. IR1 204, 257; HT 208. M1 himself could not recall the incident. IR1 239-40. Complainant alleged that between June 4, 2011, and September 12, 2011, M1 moved her from her assigned work area to other areas in violation of her seniority rights under the collective bargaining agreement. IR1 153-54. A Distribution Operations Supervisor (S1), a Union Steward, and a coworker all testified that they had either witnessed M1 order that Complainant be moved or were instructed by M1 to move Complainant from the high speed flat sorter, the assignment on which she had successfully bid, to other areas on the floor, and that M1 had done this on more than one occasion. HT 89, 181, 196-97, 229-238, 441-44. AS testified that Ml had done this without first ascertaining whether employees with less seniority were available. HT 41-42. When asked by the investigator whether he moved Complainant around and why, M1 responded that employees all over the plant were moved to where they were needed at the particular time, and that Complainant had the least seniority in the area. IR1 241-43. Complainant alleged that on June 25, 2011, a second Distribution Operations Manager (M2) and a second Distribution Operations Supervisor (S2) denied her request for leave without pay (LWOP). IR1 154-55; HT 321-22. Complainant had called in expressing her desire to take 20 hours of sick leave and 20 hours of LWOP pursuant to the Family and Medical Leave Act (FMLA). HT 30-32, 298-99, 321. She averred that M2 had not given her a reason for denying her request other than that LWO could not be granted at that time. IR1 154. She also averred that she had received a letter stating that she had not provided acceptable medical evidence to justify her absence. IR1 178, 228. A memorandum dated June 13, 2011, addressed to Complainant indicated that she needed to have worked for a total of 1,250 hours in order to be eligible to request leave under FMLA, but that she had only worked for a total of 1,115 hours. IR1 172-73; HT 278. S2 averred that she was instructed by the Attendance Coordinator to send the letter because Complainant had called in sick for more than three days, and requests for sick leave beyond three days had to be medically justified. IR1 282, 290. Complainant had presented a note from a Licensed Clinical Social Worker stating that she would be unable to perform her duties between June 25, 2011, and July 2, 2011, as well as on July 11, 2011. IR1 177. The Union Steward testified that after he was notified by Complainant about the demand for medical documentation, he went to see a management official, who told him that the letter was sent to Complainant in error. HT 278. Complainant alleged that on August 12, 2011, the Attendance Coordinator sent her a letter of demand for a debt that she had already paid. HT 325-27. As a result of Complainant taking LWOP, her pay for the period in which she had taken LWOP had to be adjusted downward in the amount of approximately two thousand dollars, which discharged her debt. HT 327. Complainant testified she subsequently received the letter of demand signed by the Attendance Coordinator. IR1 156, 195; HT 329-30. The Attendance Coordinator acknowledged that he had sent Complainant the demand letter, but he also averred that he advised Complainant that her debt had been paid, and that she should disregard the letter. IR1 270, 277. Complainant alleged that between March and May 2012, after sustaining an on-the-job injury to her right hand, she was denied Continuation of Pay (COP) and was forced to use her sick leave as a result. IR2 143-44, 162, 259-62, 409-10, 433. However, the problem was corrected, as evidenced by an email from the Health and Resource Manager to M1 dated May 17, 2012, as well as the affidavits of various management officials, including the Attendance Coordinator. IR2 144, 267, 319, 326, 370, 411-27, 381, 638. Complainant alleged that after April 2, 2012, M1 had placed her on standby without giving her a modified job offer, and told her to sit in the cafeteria where she felt ostracized. IR2 144-45. In a note to the Union President dated April 5, 2012, M1 asserted that Complainant was able to return to work according to her medical documentation, and that he was within his authority to put her on standby out of concern for her safety. IR2 163. According to Complainant's medical restrictions, she had suffered a contusion, and as a result, had no use of her right hand, which effectively prohibited her from operating power equipment. IR2 185, 320, 328-31. According to her Floor Supervisor at the time (S3), there was no work available within her medical restrictions. IR2 321, 335-39. Complainant averred that on June 15, 2012, another Distribution Operations Manager (M3) had offered her a modified assignment, which she accepted on June 19, 2012. IR2 145, 340, 370-71. S3 denied that Complainant was ever ostracized, noting that she was always notified of when weekly safety and service talks were being given and was invited to attend. IR2 322, 349-51, 371. Finally, Complainant alleged that she was issued a letter of warning by M3 for committing an unsafe act. IR2 145-46, 433-35; HT 42-46. According to the letter, Complainant was working on the high-speed tray sorter when the machine jammed. The letter further indicated that Complainant had reached into the front end of the machine without first hitting the "stop" button or shutting the machine off. As a result, the snapper bar had fallen and had struck her on the right hand, causing the contusion referenced earlier. IR2 323, 342, 372. The matter was eventually reduced to a discussion following a resolution through the grievance process. IR2 283, 341. The AJ noted in her decision that throughout the course of the hearing, she had the opportunity to observe the demeanor of each witness, and that after doing so, she found the testimony of Ml and the other management officials to be credible. She found that the dispute was all about a poor relationship between Complainant and her various lines of supervision, including and especially M1. AD Decision, p. 15. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency's actions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for those actions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her claims of disparate treatment and harassment, Complainant would have to prove, by a preponderance of the evidence that M1 and the other management officials she named were motivated by unlawful considerations of her race, sex, disability or previous EEO activity when they undertook the actions described in her complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Complainant can satisfy her burden by presenting evidence of discriminatory statements or past personal treatment attributable to M1, M2, M3 or any of the other named officials, comparative or statistical data showing differences in treatment across racial, gender, or disability lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. If Complainant fails to establish the existence of discriminatory intent on the part of any of these officials, no further inquiry would be necessary as to whether the incidents complained of are severe or pervasive to rise to the level of harassment or constitute separate acts of discrimination under disparate treatment theory. As to the incidents involving M1 that took place on June 4, 2011, the AJ found that M1 had observed Complainant with her cell phone and had incorrectly believed that she was talking on her phone while working around power equipment in violation of established safety policy. The AJ further found that in June 2011, M1 had observed Complainant wearing earphones and had merely asked AS to tell her to remove them, and that Complainant had complied with AS's directive. The AJ also found that on June 10, 2011, M1 had observed that Complainant was not in her assigned work area, and did not know that the Floor Supervisor had given Complainant different instructions. Regarding M1's moving people around to different jobs on the workroom floor, the AJ found that M1 had indeed failed to take Complainant's seniority into account when reassigning her, but that his primary concern was making sure that mail processing operations were able to continue running smoothly, with minimal interruption. Concerning the LWOP denial, the letter of demand, and the denial of COP, the AJ found that all of those incidents occurred because of administrative errors that had been promptly corrected once the appropriate officials became aware of them. With regard to the delay in offering Complainant a modified job assignment, the AJ found that between March and June, 2012, there was work available that Complainant could do using only her right hand, that she was given an assignment once her medical restrictions had been lifted, and that she was never precluded from attending any job-related meetings or functions. As to the letter of warning, the record firmly establishes that Complainant did commit the safety violation that resulted in her receiving the letter of warning. In finding in the Agency's favor, the AJ determined that M1 and the other management officials were highly credible witnesses and accorded their affidavits and hearing testimony great weight. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VLB. (November 9, 1999). A number of Complainant's coworkers did testify that on occasion, they saw Ml harass and bully Complainant. And the record does establish that M1 failed to follow the rules regarding seniority in moving Complainant to different areas on the workroom floor. However, the AJ also pointed to the hearing testimony of a second Acting 204B Supervisor(AS2), a Black female, who was asked whether she had ever observed M1 treating African American employees different from White employees. In response, AS2 testified that M1 treated everyone under his supervision equally harshly, regardless of their race, sex, or ethnicity. HT 445-47, 530. The AJ also noted the hearing testimony of M2, himself a Black male, who testified that while he did not personally observe M1 treat Black employees differently, he would not hesitate to call M1 out on it if that were the case. HT 527-28. The AJ found that Complainant did not present any testimony from other witnesses or documents that contradict the explanations provided by M1, M2, AS2 or any other officials or which call their veracity into question. We therefore find no basis upon which to disturb the AJ's credibility determination regarding the hearing testimony of any of these officials. Ultimately, we agree with the AJ that Complainant has not satisfied her burden to establish the existence of a discriminatory motivation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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 (Z0815) *7 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 Director Office of Federal Operations Footnotes 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 Citations to the investigative reports are as follows: Complaint No. 1C-081-0050-11 - IR1; Complaint No. 1C-081-0061-12 - IR2. Citation to the hearing transcript is: HT.