Alisa M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jul 20, 2018

0120161719 (E.E.O.C. Jul. 20, 2018)

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

Alisa M.,1
Complainant,

v.

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

Appeal No. 0120161719

Agency No. 1E-642-0017-15

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 28, 2016, finding no discrimination
concerning her 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. For the following
reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Mail Handler, PS-4, at Kansas City Kansas Network Distribution Center in Kansas City,
Kansas. On September 12, 2015, Complainant filed a formal complaint alleging discrimination
based on sex (female) and in reprisal for prior EEO activity when she was subjected to a hostile
work environment in that:

(1) On various dates since April 21, 2015, and thereafter, her supervisor (S1) harassed her
when he made comments of a sexual nature to her coworkers, yelled at her, and
constantly watched her;

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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(2) On or about May 5, 2015, she became aware she could not apply for supervisor jobs
because her access to the application site had been blocked;

(3) On or about May 7, 2015, S1 paged her for an investigative interview and subsequently
told her to clock out;

(4) On May 8, 2015, she was issued a notice of emergency placement in off-duty status;

(5) On May 12, 2015, and thereafter she was charged Absent Without Official Leave
(AWOL);

(6) On unspecified dates, management refused her request for copies of her leave records;

(7) On or about May 22, 2015, she was issued a notice of fourteen-day suspension; and,

(8) On or about June 29, 2015, she was issued a notice of removal.

After completion of the investigation of the complaint, Complainant did not request either a
hearing before an EEOC Administrative Judge (AJ) or a final Agency decision without a
hearing. The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.2

ANALYSIS AND FINDINGS

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was a Mail Handler at the
Agency.

Regarding claim (1), S1 denied harassing (sexually or non-sexually) Complainant and making
comments as alleged apart from one incident described herein.

2 We note that on appeal, Complainant does not specifically contend that she was denied a
hearing.
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Complainant’s Manager (M1) indicated that in response to Complainant’s harassment claim,
including comments of a sexual nature by S1, the Agency immediately investigated the issue but
the findings of the investigation were inconclusive. Nevertheless, S1 was required to take anti-
harassment training.

The one incident in which the evidence shows that S1 made a comment as alleged by
Complainant involved a remark made by S1 to a male coworker of Complainant. S1 assumed
Complainant and this male coworker were in a relationship. S1 indicated that he made the
comments to Complainant’s coworker in response to the coworker’s question about Complainant
asking, “How’s my girl doing? Do I need to go talk to her?” S1 stated that he responded to the
coworker, “that maybe he needs to give her some.” S1 indicated that he later apologized to the
coworker for offending him. Complainant acknowledged that she was not there during the
conversation. There is no persuasive evidence of other harassing, offensive, or unwelcome
comments made by S1 to (or about) Complainant. This one comment by itself is not sufficiently
severe or pervasive so as constitute a discriminatory hostile work environment.

Regarding claim (2), Complainant claimed that at the relevant time, an identified manager helped
her with her 991 and application for supervisor jobs and when she got to the job screen it said
“Blocked.” The identified manager denied helping Complainant at the relevant time although
she stated that she assisted many employees, other than Complainant, in completing their
eCareer profiles and she never encountered “Blocked” being on a screen for anyone.
Specifically, the identified manager stated that she did not know Complainant or her name at that
time. Management indicated that as long as the job posting was open to all career employees,
any employee could apply for the job and no one had blocked Complainant from applying for
supervisor positions.

Regarding claim (3), S1 indicated that on May 7, 2015, Complainant was paged for an
investigative interview due to her failure to timely change some cans that were overflowing for
hours. S1 stated that Complainant however refused to participate in the investigative interview
and she was thus removed from the clock.

Regarding claim (4), M1 indicated that on May 8, 2015, following the incident in claim (3), he
issued Complainant the notice of official directive - emergency placement for her failure to
follow instructions. Therein, M1 notified Complainant that she was placed on emergency
placement on May 8, 2015, and instructed her to report for a pre-disciplinary interview on May
12, 2015, to discuss her emergency placement. Complainant was specifically notified therein
that her attendance in this pre-disciplinary interview meeting was mandatory and failure to
comply with the foregoing instructions would result in her removal.

Regarding claim (5), Complainant indicated that she was charged with AWOL for not attending
the meeting on May 12, 2015, described in claim (4). M1 indicated that Complainant failed to
report to the May 12, 2015 meeting and made no effort to contact management in any way
concerning the subject matter.

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Regarding claim (6), management denied Complainant ever made the request for copies for her
leave records or that they ever denied such a request.

Regarding claim (7), M1 stated that on May 22, 2015, he issued Complainant a notice of
fourteen-day suspension for her failure to follow instruction. Specifically, M1 indicated that
Complainant was placed off the clock and instructed to attend the meeting, described in claims
(3), (4), and (5), and she made no effort to contact management concerning her status. Therein,
M1 noted that he also considered Complainant’s prior 7-day suspension dated September 4,
2014, for failure to follow instructions. Complainant was also notified therein that the notice
was her final warning prior to discharge and her failure to correct the deficiencies cited therein
would result in her discharge from the Postal Service.

Regarding claim (8), M1 stated that on June 29, 2015, he issued Complainant a notice of removal
for her failure to maintain regular attendance/AWOL in that she had unscheduled absences for 72
hours from May 13 – 25, 2015.3 Complainant’s Plan Manager indicated that he concurred with
M1’s decision to issue the notice of removal to Complainant due to her AWOL and her failure to
follow instructions to return to work.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Regarding her claim of harassment,
we find that Complainant failed to establish the severity of the conduct in question or that it was
related to any protected basis of discrimination. After a review of the record, we find that
Complainant failed to show that there were any similarly situated employees not in her protected
groups who were treated differently under similar circumstances. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

3 The Agency noted that Complainant filed a grievance which was resolved at Step 3 wherein
which it was agreed that if she reported to work by a specified date, the notice of removal at
issue would be rescinded or changed to a lesser corrective action. The Agency stated that
Complainant did not report to work by the specified date in the settlement.
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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

July 20, 2018
Date