Brigette L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120170052 (E.E.O.C. Dec. 19, 2018)

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

Brigette L.,1
Complainant,

v.

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

Appeal No. 0120170052

Agency No. 4C-250-0018-15

DECISION

Complainant timely 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 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

ISSUE PRESENTED

The issue presented is whether the Agency subjected Complainant to discrimination and a hostile
work environment on the bases of race (African-American), disability, and reprisal for prior
protected EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible
Distribution Window Clerk, PS-06, at the Agency’s Post Office in Rocky Mount, Virginia.

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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Complainant was supervised by the Supervisor of Customer Services (Caucasian) and the Officer-
in-Charge (OIC) of the Rocky Mount Post Office (Caucasian).

According to Complainant, on September 26, 2014 and January 9, 2015, she became very busy
and overwhelmed with customers while working as a Window Clerk. Report of Investigation
(ROI), at 153. Complainant recalled that she rang the bell to request assistance, as she was
instructed to do when three or more customers are at the counter. Id. Complainant averred,
however, that the OIC of Rocky Mount and the Supervisor of Customer Services did not provide
her with the assistance that she requested on these two dates. Id.

Complainant also averred that a coworker placed an All-Purpose Container (APC) in front of the
bathroom door while she was in the bathroom. Id. at 158. Complainant believed that the coworker
was aware that she was in the bathroom and intentionally blocked the door in order to make it
difficult for her to exit. Id. Also, according to Complainant, on December 8, 10, 14, and 20, 2015,
the OIC of Rocky Mount and the Supervisor of Customer Service changed her start time from 6:00
a.m. to 7:30 a.m. Id. at 162.

Further, according to Complainant, when one of her coworkers did not open the Window on time,
the OIC of Rocky Mount went to the workroom floor and loudly yelled her (Complainant’s) name.
Complainant maintained that she was blamed for the window not opening on time that day, and is
usually blamed when the window is not opened on time. Id. at 181. Complainant believed that
management routinely disrespected her in front of her coworkers in an effort to embarrass her. Id.
at 171.

Complainant, at her request, was subsequently scheduled to be reassigned to the Post Office in
Penhook, Virginia. Before Complainant’s scheduled reassignment, the OIC of Rocky Mount made
the half hour drive to the Penhook Post Office and met with the OIC of the Penhook Office. Id. at
270-71. Therein, according to the OIC of Penhook, the OIC of Rocky Mount provided her with
negative information about Complainant. The negative information provided included that
Complainant documents every interaction, files grievances, and that she could not be trusted with
personal information. Id. The OIC of Penhook attested that the OIC of Rocky Mount told her to
warn the Carriers to keep their personal lives to themselves because Complainant might find a way
to use the information against them. Id. The OIC of Penhook stated that she cried because
everything the OIC of Rocky Mount told her was overwhelming. Id. The OIC of Penhook then
warned coworkers that Complainant had filed grievances.

On January 7, 2015, Complainant contacted an EEO Counselor and filed an EEO complaint on
April 23, 2015, alleging that the Agency subjected her to a hostile work environment and
discrimination on the bases of race (African-American), disability, and reprisal for prior protected
EEO activity when:

1. On September 26, 2014, and January 9, 2015, she was not given assistance as her
coworkers were;

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2. On December 16, 2014, a coworker placed an All-Purpose Container (APC) in front of
the bathroom door when she was in the bathroom and management did nothing;

3. In November and December 2014, management changed her work schedule from a
6:00 a.m. start to a 7:30 a.m. start;

4. On January 7, 2015, she was made to do her coworker’s job because her coworker did
not want to do it;

5. On multiple dates, management instructed her to do things exactly the way two of her
co-workers do, and these two coworkers harass her daily;

6. On multiple dates, management talked negatively about her to her coworkers;

7. On multiple dates, management consulted with her coworker to make up her work
schedule;

8. On January 16, 2015, and other dates, management disrespected her in front of
coworkers;

9. On March 13, 2015, the OIC [of the Rocky Mount Post Office] went to her new duty
station and told management not to be nice to her and spread lies about her.

Following 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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew her request.
Consequently, 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 as alleged.

The Agency found, with regard to claim 1, that Complainant did not establish that there were other
clerks available to assist her on the two dates at issue. The Agency noted that it was unlikely that
management would have intentionally inconvenienced customers as alleged by Complainant. The
Agency also found that Complainant did not establish that management was aware of the APC
incident with respect to claim 2. In addressing claim 3, the Agency found that work schedules do
not show that there was a change in Complainant’s start time, as she alleged. The Agency further
found that Complainant did not show that claims 4 and 5 occurred, as the Supervisor of Customer
Services and the OIC denied Complainant’s allegations. The Agency additionally noted, with
regard to claim 6, that clerks would come to the Supervisor of Customer Service to complain about
Complainant, and found no evidence that such discussions about Complainant were based on her
protected classes. As for claim 7, the Agency observed that this matter was based on operational
needs and not Complainant’s race or disability. The Agency additionally found, with regard to
claim 8, that the OIC of Rocky Mount was simply frustrated that the window would not be open
on time, but she did not blame Complainant.
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The Agency further observed, with respect to claim 9, that the OIC of Rocky Mount only traveled
to the Penhook Post Office to warn about Complainant because she was concerned that
Complainant may file more grievances upon her reassignment. The Agency found that the OIC of
Rocky Mount did not mention Complainant’s prior EEO complaints and only made reference to
Complainant’s prior grievances. The Agency found that the OIC of Rocky Mount took no action
based on Complainant’s EEO activity. The Agency found that Complainant did not show that
management’s actions were severe or pervasive enough to rise to the level of a hostile work
environment, and that Complainant did not show any evidence of discriminatory or retaliatory
animus on management’s part.

CONTENTIONS ON APPEAL

On appeal, Complainant, through her attorney, maintains that she established a prima facie case of
reprisal, and established evidence of per se reprisal as well. Complainant states that she filed an
EEO complaint in March 2013 when she was not promoted due to her race, and she also engaged
in prior protected EEO activity when she obtained “limited duty” as an accommodation for her
medical disability. She states that she engaged in further protected EEO activity when she wrote a
letter to the Supervisor of Customer Services discussing the hostile work environment, and when
she specifically told the Supervisor and the OIC of Rocky Mount that they were creating a hostile
work environment for her. In addition, Complainant maintains that she engaged in protected EEO
activity when she filed grievances regarding the hostile work environment. Complainant maintains
that the OIC of Rocky Mount’s action of driving 30 minutes to the Penhook Post Office to warn
that she had a history of filing grievances was clearly in reprisal for her prior protected EEO
activity. Complainant states that the OIC of Rocky Mount and the Supervisor of Customer Service
took actions to interfere with her job performance, which included ignoring her requests for
assistance when her line exceeded three customers. Complainant states that other employees were
provided with such assistance. In addition, according to Complainant, a coworker placed an APC
in front of the bathroom door in an intentional attempt to prevent her from exiting the restroom.
She also alleges that management required her to perform other coworkers’ duties, changed her
work schedule, and intentionally intimidated her because of her EEO activity. Complainant
additionally states that the Supervisor of Customer Service attempted to issue her a 7-day
suspension for her medical related absences against the advice of Labor Relations. Complainant
asserts she was nevertheless issued a suspension for unsatisfactory attendance and improper
conduct for requesting leave and calling in sick on February 2, 5-7, 2015.2

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,

2 We note that Complainant’s allegations with respect to the suspension were not accepted for
investigation, and Complainant does not challenge the Agency’s acceptance of the claims for
investigation on appeal. Thus, we decline to address the matter further herein.
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§ 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

Hostile Work Environment

To establish a prima facie case of hostile environment harassment, a complainant must show that:
(1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form
of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4) the harassment affected a term
or condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29
C.F.R. § 1604.11.

In determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The incidents must have been “sufficiently severe or
pervasive to alter the conditions of [Complainant’s] employment and create an abusive working
environment.” Harris, 510 U.S. at 21. The harasser’s 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 (Mar. 8, 1994) (Enforcement
Guidance on Harris).

In the instant case, Complainant asserts that the OIC of Rocky Mount and the Supervisor of
Customer Services continuously subjected her to a hostile work environment. Complainant’s
examples of the harassing behavior, include a change in her work schedule from a 6:00 a.m. start
to a 7:30 a.m. start; not providing assistance when her line exceed three customers; asking her to
perform other coworkers’ duties; and being disrespected, among other things. While Complainant
has cited to various incidents where she felt that management’s actions were adverse or disruptive,
we find that Complainant failed to show that these incidents were the result of unlawful
discrimination. The record is clear that Complainant had a contentious relationship with the
management of the Rocky Mount Post Office. However, the Commission notes that Title VII is
not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75,
81 (1998). As such, we find that Complainant has not shown that the events with regard to claims
1-8 were severe or pervasive enough to rise to the level of a hostile work environment. Moreover,
there is simply no evidence in the record that management was motivated by discrimination or
retaliatory animus with respect to these claims.
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With respect to claim 9, while it may have not been ideal for the OIC of Rocky Mount to warn
employees of the Penhook Post Office that Complainant had a history of filing grievances, there
is no evidence in the record that the OIC of Rocky Mount was motivated by Complainant’s EEO
activity in doing so. The record reflects that the OIC of Rocky Mount only specifically warned of
Complainant filing grievances and made no mention of Complainant’s EEO activity. We note that
the OIC of Rocky Mount cautioned the Penhook OIC that Complainant could file a grievance
about clerk and Postmaster hours. While the OIC may have said things like, “watch your back,”
“Complainant writes everything down,” and recommended not to share personal information with
Complainant, among other things, the record only shows that such language was made with regard
to Complainant filing grievances and not engaging in EEO activity. In particular, one witness said
that the OIC warned that Complainant “looks for anything to file a grievance on,” among other
things. But the witness did not mention that the OIC had said anything about Complainant’s EEO
activity. The OIC of Penhook also only averred that the cautioning was about Complainant’s
grievances and did not say that Complainant’s EEO activity was mentioned. Consequently, we
find that Complainant did not show that the OIC’s visit to the Penhook Post Office was motivated
by retaliatory animus, as she alleged. As Complainant withdrew her request for a hearing, we do
not have the benefit of an Administrative Judge’s credibility determinations after a hearing;
therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based
on the record before us, we are not persuaded that Complainant has shown that the Agency’s
conduct was based on her protected EEO activity or other protected classes.

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.

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.
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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.

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.

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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

December 19, 2018
Date