Afton C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120170122 (E.E.O.C. Oct. 23, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Afton C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120170122

Agency No. 4J604002613

DECISION

On September 28, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 1, 2016, 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether the final agency decision (FAD) properly found that Complainant did not establish that
she was discriminated against or subjected to harassment based on race, sex, age, reprisal for
prior EEO activity, and disability with regard to 12 incidents which formed the basis of her
hostile work environment claim.

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.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Glen Ellyn Post Office facility in Glen Ellyn, Illinois. The Agency’s FAD thoroughly
discussed the facts in the record, and the instant decision incorporates them as stated. On
February 20, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), disability (Asthma), age (51),
and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 with
respect to 12 separate incidents to include: the monitoring her leave, work schedule, and work
performance. Specifically, she maintained that:

1. On November 7, 2012, she received a Letter of Warning (LOW) for Failure to Follow
Instructions Extending Route Office Time;
2. On November 12, 2012, she received a 7-Day Suspension for Failure to Follow Instructions
Extending Route Office time;
3. On December 15, 2012, she was requested to bring in medical documentation and
subsequently when she did not provide the documentation was charged LWOP;
4. On December 19, 2012, the Postmaster informed her he was going to walk her route with her
and made the comment he hoped she had her inhaler with her because she was going to need it;
she suffered an asthma attack and the Postmaster failed to get her immediate medical treatment;
5. On December 20, 2012, she was requested to bring in medical documentation and became
aware she was flagged to bring in documentation for each absence;
6. On December 29, 2012, she received a 14-Day Suspension for Failure to Follow
Instructions/Unauthorized Overtime;
8. From mid-November 2012 to mid-January 2013, she was stood by and followed while casing
her route;
9. From mid-November 2012 to mid-January 2013, she was followed in her truck;
10. On May 14, 2013 she was issued a 14-Day Suspension;
11. Charged Leave Without Pay (LWOP) for June 11-12, 2013, even though she requested
Annual Leave for her FMLA-protected absence; and
12. On July 10, 2013 she felt threatened when her supervisor came out on her route and
instructed her to bring the mail back to the office and clock out.2

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). Although Complainant initially requested a
hearing, on September 6, 2016, the AJ remanded the complaint to the Agency for the issuance of

2 Initially, the complaint included one additional allegation (allegation 7), i.e., on March 21,
2013, when she requested union time, was given 2 chairs up against a wall outside the lunchroom
which resulted in her being on display and laughing joke. However, on April 17, 2013, this
allegation was dismissed for failure to state a claim. A review of the record established that this
allegation was properly dismissed in accordance with 29 C.F.R. § 1614.107. Accordingly, this
allegation will not be addressed further in this decision.
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a final agency decision, due to Complainant’s failure to prosecute her case. The Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination and harassment as alleged.

CONTENTIONS ON APPEAL

Complainant, in pertinent part, maintains that the AJ erred in dismissing her hearing request nd
remanding her complaint to the Agency.

The Agency, among other things, contends that it took all the actions at issue due to
Complainant’s failure to follow instructions and obey management orders.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

ANALYSIS AND FINDINGS

At the outset, we find that the AJ did not abuse his discretion by dismissing Complainant’s
hearing request. An Administrative Judge has inherent powers to conduct a hearing and issue
appropriate sanctions. EEO-MD 110 Ch. 7, § III(D) (Aug. 5, 2015); Complainant v. Dep't of
Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015). Administrative Judges have broad
authority over the conduct of hearings. 29 C.F.R. § 1614.109 et seq. If a party does not respond
to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party
pursuant to 29 C.F.R. § 1614.109(f)(3). An AJ must first issue a Notice to Show Cause to the
non-complying party. EEO-MD-110, Ch. 7, § III(D), n. 6; see DaCosta v. Dep't of Education,
EEOC Appeal No. 01995992 (Feb. 25, 2000).

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially establish a prima facie case by demonstrating that he or she
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
441 U.S. at 804 n.14.
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The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of race, sex, age, disability
and reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. The Agency maintained that none of management’s actions were
discriminatory or harassing as alleged. Complainant, according to the Agency, was monitored
and disciplined for poor performance consistent with established policy; that management
needed to protect the Agency’s interests; and that Complainant’s protected groups or prior EEO
activity were not a determining factor in any of its decisions or actions as alleged. Management
explained that Complainant received discipline for failing to follow management’s instructions, a
fact that she acknowledges, while arguing that management should never have given her the
various instructions to begin with.

The records also show that Complainant consistently failed to obey management’s orders in her
leave usage and in using her cellphone indiscreetly while casing in the office, and while out on
her assigned routes; and management had received complaints from customers about
Complainant’s mail delivery delays and errors. As such, the Agency maintained that
management was within its purview to monitor Complainant’s work performance, direct her
work, and request her medical documentation.

In an effort to show pretext, Complainant stated that other individuals received better treatment
than she did. However, Complainant failed to identify any similarly situated individuals who
were treated more favorably than she was, as she identified individuals who followed
management’s instructions or complied with their assigned route schedules. Thus, Complainant
failed to demonstrate that management’s stated reasoning was not its true motivation and that
they were motivated by a discriminatory animus. We also find her coworker’s testimony that
management followed Complainant if she left her case, pointed their fingers at her, yelled at her,
treated her “like a slave,” and followed her to the bathroom, even if true, was not conduct that
was severe or pervasive enough to rise to the level of unlawful harassment. We therefore find
that Complainant has failed to present any persuasive evidence that would demonstrate that
management’s reasons for its actions lacked a basis in the facts of the case or that those actions
resulted from non-legitimate, discriminatory motives not articulated by management.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the
preponderance of the evidence in the record does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
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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

October 23, 2018
Date