Ardell B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120171191 (E.E.O.C. Oct. 25, 2018)

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

Ardell B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120171191

Agency No. 4G330008316

DECISION

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 January 6, 2017 final
agency decision (FAD) 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. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Hialeah Promenade Station in Hialeah, Florida.

On June 23, 2015, Complainant participated in mediation with management officials regarding a
prior EEO complaint, 4G-330-0205-15. The mediation resulted in a settlement agreement.

Subsequently, Complainant submitted requests for annual leave for two specific dates, December
16 and 17, 2015. Complainant claimed that her first and second-level supervisors (S1 and S2)
denied the requests indicating either “no annual leave in December” or “operational reasons.” The
record indicates that on at least one occasion, a reason was not provided on the leave request form.
Complainant disagreed with the reasons provided for the denials.

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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From October 2015 through December 2015, Complainant submitted multiple requests for a
temporary change of schedule in December 2015. S1 and S2 denied each request, generally
providing “operational needs” as the reason. Complainant alleged that S2 provided no reason on
at least three occasions. Complainant disagreed with management’s reasons for denying her
schedule change requests because she was able to change her schedule in December in the past,
and she believed that there were other carriers who could cover her route.

Complainant alleged that on or about November 19, 2015, she attempted to speak with S2 to
resolve her allegations of bullying and harassment. Complainant asserted that she mentioned to
S2 that in prior years she had the ability to request annual leave and schedule changes during
December. However, according to Complainant, S2 replied that she “would do nothing for
[Complainant] because [she] had behaved badly” when she cited her in the prior EEO complaint.

On or about December 31, 2015, and January 9, 2016, Complainant informed management that
locker stations in two separate buildings on Route 16 required replacement. Complainant alleged
that S2 told her that the Agency would not fix a private locker box. Complainant asserted that she
later submitted a request for a broken fan in her vehicle, but her first-level supervisor (S1) told her
there were no other vehicles available.

Complainant alleged that she was subjected to approximately nine street observations during the
period of August 2015 through April 2016. Complainant claimed that S1, S2, and other
supervisors performed the street supervision.

Between November 17, 2015 and December 11, 2015, the Hialeah Main Post Office Postmaster
visited Complainant’s station. Complainant stated that she requested to speak with the Postmaster
to discuss her concerns regarding S2. Complainant claimed that the Postmaster agreed to meet
with her; however, he left without doing so. On February 23 and March 30, 2016, Complainant’s
union representative requested meetings with the Postmaster to address Complainant’s concerns.

On April 15, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment in reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, her manager stated that she would
do nothing for her because she was required to sign an EEO agreement on her prior complaint;
management denied her annual leave requests; management denied her request for a change of
schedule; management failed to properly address a safety hazard that Complainant reported;
management subjected her to street supervision; and management denied her request to speak with
the Postmaster.

In addition, Complainant alleged that she had been subjected to harassment when, (1) management
failed to abide by an EEO settlement reached in Agency No. 4G-330-0205-15; (2) Complainant
was not invited to an informal grievance meeting regarding her letter of suspension; and (3)
Complainant was denied the opportunity to meet with a union official on an unspecified date.
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On April 21, 2016, the Agency dismissed claim (1) for failure to state a claim and claims (2) and
(3) for as an attempt to lodge a collateral attack on proceedings in another forum. Complainant
raised no challenges to the Agency’s dismissal of these claims on appeal; therefore, the
Commission will not address them further herein.2

At the conclusion of the investigation of the accepted claims, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant
did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency reasoned that Complainant failed to establish a prima facie case of
retaliation. Even assuming that Complainant had established a prima facie case of reprisal, the
Agency determined that management articulated legitimate, nondiscriminatory reasons for its
actions. Regarding her annual leave requests, S2 explained that the Postmaster informed
management officials that there would be no annual leave between December 1, 2015 and
December 24, 2015, in order to save on overtime hours and provide service to customers during
the holiday season. The Agency noted that the record included a Memorandum of Understanding
(MOU), which provided that the letter carriers’ vacation period would be from January 1 through
November 30. Likewise, the Postmaster reported that he advised management to abide by the
MOU. With respect to her requests for schedule changes, S2 asserted that Complainant’s requests
for change of schedule were denied due to operational needs and noted that management was not
required to approve changes. The Postmaster corroborated S2’s assertions, as he stated that
supervisors have discretion to revise an employee’s schedule based on the needs of the Postal
Service.

Moving to pretext, the Agency found that Complainant failed to show that her requests for annual
leave and changes of schedule were denied due to her prior EEO activity. S1 indicated that the
requests were denied based upon instruction from management in accordance with the MOU and
the needs of the Agency.

With respect to Complainant’s allegation that she was subjected to harassment and a hostile work
environment in claims (1), (4), (5), and (6), the Agency determined that Complainant failed to
show that she was subjected to unwelcome verbal or physical conduct involving her protected
class. Specifically, S1 denied making the alleged comment in claim (1); the record was
inconsistent with the reported safety hazards Complainant alleged and the record did not indicate
that management’s responses were unreasonable regarding claim (4); Complainant did not show

2 The Commission notes that while the Agency dismissed Complainant’s claim regarding
compliance with an EEO settlement agreement from processing in this case, the record indicates
that it advised Complainant that it would forward the allegation to its Southern Area EEO Office
for processing as a separate settlement agreement breach allegation in accordance with 29 C.F.R.
§ 1614.504.
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that the street supervision on her route was unwarranted or unreasonable; and Complainant failed
to provide evidence that she was denied a meeting with S3.

The Agency concluded that Complainant failed to show that the alleged incidents were based on
retaliatory animus. Further, the Agency found that the alleged incidents were insufficiently severe
or pervasive to establish a hostile work environment. As a result, the Agency concluded that
Complainant was not subjected to a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that over the course of 14 months, she was subjected to 19
inspections, which she described as excessive and in violation of the collective bargaining
agreement. Complainant argues that her requests for annual leave were approved prior to filing
her EEO complaint and that three of the forms denying her requests were not filled out completely
in violation of Agency rules and the collective bargaining agreement. Complainant argues that
other letter carriers were granted annual leave in December 2015, and that six of those individuals
had less seniority than Complainant. Complainant alleges that management did not provide a
reason for the denial of her change of schedule requests in violation of the collective bargaining
agreement, but further claims that S2 altered some of the forms that did not have the requisite
denial reason. Complainant disagrees that the mail locker that she reported was a private locker,
and instead is a main locker that was repaired by the Agency in the past. Complainant maintains
that she reported the broken fan in her truck on four occasions, but unlike in the past when her
repairs were completed immediately, her reports were ignored. Complainant contends that her
efforts to meet with the Postmaster went ignored. Accordingly, Complainant requests that the
Commission reverse the FAD.

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, 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”).

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).
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Complainant must initially establish a prima facie case by demonstrating that she was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Corp. 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, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct.
2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We shall assume, arguendo, that Complainant established a prima facie case of reprisal with regard
to her claims. We find, however, that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. Regarding claim S2’s comments, S2 denied telling Complainant that she was “bad”
and that she would not do anything for her. ROI, at 124. S2 affirmed that she told Complainant
that she could not approve her annual leave request because the maximum percentage of employees
were already scheduled off. S2 stated that Complainant suggested that managers could “work
around” the rules and she expressed disbelief to Complainant that Complainant would request that
she would break the rules following their settlement agreement. Id. S2 added that she told
Complainant that violating the rules would breach their agreement. Id.

With respect to the denials of annual leave and change of schedule requests, S2 acknowledged that
she disapproved Complainant’s requests in October and December 2015 in accordance with the
Postmaster’s instruction to abide by the MOU and restrict annual leave from December 1 through
December 24. ROI, at 125, 130. S2 stated that she denied Complainant’s request for change of
schedule because Complainant failed to switch with another employee, stating that no one would
switch with her. Id. at 131. She explained that in the absence of Complainant switching with
another employee, Complainant would have to case and deliver mail on an unfamiliar route, which
would not have been a cost-effective business decision. Id.

As to Complainant’s allegations that management failed to properly address her safety hazard
reports, management officials affirmed that the reported locker and fan issues were not considered
safety hazards. ROI, at 149. S2 affirmed that she called Vehicle Maintenance on the day that
Complainant initially reported a problem with the fan in her vehicle. Id. Likewise, S2 asserted
that S1 reported the broken fan on the same day it was reported to her. Id. at 135. S1 explained
that she contacted Vehicle Maintenance twice to repair the fan and they were responsible for
scheduling mechanics, but maintained that Complainant’s vehicle was safe to drive. Id. at 150.
S2 told Complainant that no other vehicles were available while she waited for the repairs. Id. at
135. S2 stressed that unsafe vehicles received repairs first and a broken fan does not affect safety
or operability. Id. She added that the fans were added as an approved modification for the
employees’ comfort, but not their safety. Id. As for the broken lockers, S2 affirmed that the
lockers in question were private mailboxes, which were not the responsibility of the Postal Service.
Id.

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Turning to Complainant’s allegation that she was subjected to street supervision, management
explained that District Management requires one driving observation on each carrier at least once
every quarter along with a full day observation at least once per year. ROI, at 137, 151.
Additionally, poor performers, as determined by an internal report, receive additional observations.
Id. at 137, 173, 184. For example, at least one supervisor testified that he was instructed to observe
the carriers with the biggest overruns on the prior day and the biggest overruns to projected
performance. He added the employees were chosen based solely on internal reporting and that
there was no mention of specific employees or routes. Id. at 173. Likewise, another supervisor
affirmed that he conducted street supervision on Complainant in November 2015 and February
2016 because his manager advised him that he needed to learn how to perform street observations
and the three worst performers from the prior day were selected. Id. at 184. S1 affirmed that the
frequency of Complainant’s observations did not increase, noting that in a nine-month period,
Complainant received five observations. Id. at 152. Similarly, the record shows multiple
employees received street supervision at the same frequency as Complainant during the relevant
period.

With respect to Complainant’s allegation that her requests to meet with the Postmaster were
denied, the Postmaster affirmed that he was making the rounds at Complainant’s facility when
Complainant informed him that she would like to talk to him, but that Complainant did not
explicitly request a meeting. ROI, at 163. He stated that Complainant did not approach him during
the remainder of his visit, but noted that had Complainant requested a meeting, he would have
advised her to contact his secretary. Id. S3 stressed that in the past, Complainant stopped by his
office. Id. While there appears to be a communication issue, as the record indicates that union
officials did reach out to the Postmaster for a meeting in February and March 2016, there is no
evidence that the failure to meet was a result of prohibited discrimination.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant did not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted on the basis of retaliatory
animus. Complainant failed to carry this burden. As a result, the Commission finds that
Complainant has not established that she was subjected to reprisal as alleged.

Finally, regarding Complainant’s harassment claim, we find that under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of harassment must fail.
A finding of harassment is precluded by our determination that Complainant failed to establish
that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v.
United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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As such, we find that Complainant did not establish that she was subjected to reprisal or a hostile
work environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the FAD finding no discrimination.

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.
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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)
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 25, 2018
Date