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

Equal Employment Opportunity Commission

Jul 13, 2016

0120142585 (E.E.O.C. Jul. 13, 2016)

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

Catheryn P.,1
Complainant,

v.

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

Appeal No. 0120142585

Hearing No. 443-2013-00134X

Agency No. 4J-530-0092-12

DECISION

The Commission accepts Complainant’s appeal from the Agency’s June 10, 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Sales and
Services Associate at the Agency’s Madison Capital Station – Retail in Madison, Wisconsin.
In June 2011, a new supervisor (S1) arrived at the Capital Retail Station. S1 had additional
responsibilities at the Capital Annex and the University Post Office, but she was assigned more
hours at the Capital Retail Station to address issues with scheduling and customer complaints.
When S1 arrived, she instituted new Standard Operation Procedures and created a break
schedule. The Clerks were unaccustomed to the new level of supervision, and S1 experienced

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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pushback from the employees. In addition, the Capital Retail location excessed two of the
three Window Clerks at the station.

On April 9, 2012, the Capital Retail Station was very busy and Complainant only had one
helper. Complainant was assisting a customer on a customs form when S1 instructed her to
stop keying the form. Complainant told S1 that she was almost done, but S1 again instructed
Complainant to stop in order to assist other customers. On April 12, 2012, S1 attempted to
meet with Complainant to discuss the incident, but Complainant refused stating that she would
talk to S1 after she talked to her Employee Assistance Program (EAP) Counselor. On April
17, 2012, S1 requested the next progressive discipline for Complainant’s failure to follow her
instructions. The Station Manager (M1) concurred with S1’s decision. On April 23, 2012, S1
issued Complainant a 14-day suspension for failure to follow instructions for Complainant’s
actions on April 9, 2012.

On April 18, 2012, Complainant submitted a leave request to attend an EAP appointment on
April 19, 2012. S1 told Complainant that she needed to confer with her before scheduling on-
the-clock EAP appointments and provided her a copy of the Agency’s policy for scheduling
EAP appointments. While S1 initially told her she could not attend the appointment, she
subsequently approved the leave request.

On April 24, 2012, Complainant and S1 were involved in a verbal confrontation while
Complainant was pitching the box mail. S1 corrected Complainant’s technique and took the
mail out of Complainant’s hand while she was pitching it. When Complainant asked for the
mail back, S1 stated “you are skating on very thin ice.” Complainant felt that S1 had
threatened her, left the box section, and called the Union. S1 instructed Complainant to go to
her office, but Complainant refused. Later that day, Complainant met with S1 and M1 with
the Union Steward to explain her actions. S1 requested the next progressive discipline for
Complainant’s conduct and M1 concurred. On May 3, 2012, S1 issued Complainant a Notice
of Removal for failure to follow instructions. Complainant filed a grievance, and the removal
was reduced to a 14-day Suspension.

On May 7 and 8, 2012, Complainant and another employee failed to take their breaks at their
scheduled times. On or around May 10, 2012, S1 held a “day in court” meeting with
Complainant regarding missed mail and her failing to follow the break schedule. Complainant
did not receive any discipline following the meeting.

Complainant had been completing the Station’s Daily Financial (1412) Reports for about eight
years. Complainant went out on vacation June 2 through June 15, 2012, and S1 and an acting
supervisor completed the 1412 reports. When Complainant returned from vacation, she filed a
grievance against S1 because completing the 1412 reports was considered clerk duties. S1
later asked Complainant how long it would take her to verity and complete the 1412 reports
that had accumulated during her absence. Complainant refused because she believed that S1
had already verified the reports. S1 gave Complainant a direct order and Complainant refused
to verify the 1412s. On June 28, 2012, S1 held a day in court meeting with Complainant
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regarding her refusal to verify the 1412s. S1 did not discipline Complainant for the incident,
and Complainant subsequently agreed to verify the 1412s. When Complainant completed the
reports, she put S1’s initials on the reports. S1 discovered Complainant put her initials on the
reports, and held a day in court meeting with Complainant. S1 requested the next step of
progressive discipline against Complainant, and M1 concurred. On July 18, 2012, S1 issued
Complainant a Notice of Removal for failure to follow instructions and unacceptable conduct.

On August 14, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of sex
(female), age (52), and in reprisal for prior protected EEO activity when:

1. On April 18, 2012, she was told she could not make an Employee Assistance
Program appointment for April 18, 2012, at 2:55 P.M.;

2. On April 23, 2012, she was issued a 14-Day Suspension dated April 20, 2012, for
failure to follow instructions;

3. On May 3, 2012, she was issued a Notice of Removal dated April 20, 2012, for
failure to follow instructions;

4. On May 10, June 28 and July 10, 2012, she was given day in courts for failure to
follow instructions; and

5. On July 18, 2012, she was issued a Notice of Removal for failure to follow
instructions and unacceptable behavior.2

At the conclusion of the investigation, 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). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on June 3, 2014.

In her decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Additionally, the AJ found that there was
no evidence that the alleged incidents were based on discriminatory or retaliatory animus. For
example, as to claim (1), Complainant admitted that S1 approved her on-the-clock EAP leave
request; however, she claims that she was harassed because S1 initially told her she could not
attend and made angry gestures. However, Complainant further admitted that Agency policy
is to confer with management before scheduling on-the-clock EAP appointments. With respect

2 The Agency and AJ dismissed several additional claims for untimely EEO counselor contact.
Complainant did not specifically challenge the dismissal of these claims on appeal. The
Commission will consider the claims as background evidence in support of Complainant's
overall hostile work environment claim. The claims have been re-numbered for clarity.
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to claim (2), Complainant was issued the 14-Day Suspension as the next step in progressive
discipline for failing to follow S1’s instruction to stop keying the custom form.

Regarding claim (3), S1 issued the Notice of Removal as the next step in progressive
discipline. S1 observed Complainant going through the mail one by one when it was addressed
to the same address, and instructed Complainant to fan the mail. At most, Complainant
disputed S1’s instruction to fan the mail, similar to her disagreement when S1 instructed her to
stop keying the custom form. Even assuming that S1 angrily grabbed the mail from
Complainant, Complainant never asserted that she followed S1’s instruction to fan the mail.
As a result, S1 issued Complainant the Notice of Removal, which was later reduced to a 14-
day suspension.

Finally, with respect to claims (4) and (5), on or around May 8, 2012, S1 held a day in court
meeting with Complainant regarding some missed mail and her failure to follow the break
schedule. Additionally, on June 28, 2012, S1 held a day in court meeting with Complainant
regarding her refusal to follow S1’s instruction to complete the 1412 reports that had
accumulated while she was on vacation. Complainant later met with M1 and agreed to verify
the 1412 reports; however, she put S1’s initials on the reports rather her own. S1 requested
the next step of progressive discipline against Complainant and M1 concurred. As a result, S1
issued Complainant the Notice of Removal for failure to follow instructions and unacceptable
conduct.

The AJ concluded that Complainant failed to show that the alleged incidents were based on
discriminatory or retaliatory animus. As a result, the AJ found that Complainant was not
subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency
subsequently issued a final order fully implementing the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency. Complainant argues that there is sufficient evidence to support her claim that she
was subjected to reprisal and a retaliatory hostile work environment. Complainant claims that
S1 has shown a willingness to manipulate documentary evidence which necessitates a hearing
to test the credibility of her testimony. Complainant argues that discipline was not warranted
and there is more than enough evidence to show that her prior protected EEO activity was the
causation. Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
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Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to 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 her statutorily protected class; (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; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was discriminated against and subjected to a hostile work environment as evidenced by
multiple incidents. Construing the evidence in the light most favorable to Complainant, the
Commission agrees with the AJ that Complainant has not shown she was subjected to a hostile
work environment. The record reflects that the alleged incidents were more likely the result of
routine supervision, personality conflicts, and general workplace disputes and tribulations.
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).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
discriminatory or retaliatory animus. For example, regarding her EAP appointment, S1
explained that she informed Complainant that she would approve the leave if she could cover
her absence. ROI, at 307. Complainant immediately insisted that she could go whether S1
could cover her absence or not, and S1 gave Complainant a copy of the Agency’s EAP
appointment policy. Id. S1 was able to cover the absence and approved Complainant’s leave
request to attend the appointment. Id. With respect to the 14-day suspension, S1 affirmed that
she issued it after Complainant failed to follow her instruction to stop keying information for a
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customs form and assist customers waiting in line. ROI, at 308, 526-27. This suspension was
the next progressive step of discipline. Id. at 356-57.

As to the first Notice of Removal, S1 and Complainant were involved in a verbal confrontation
after S1 corrected Complainant’s technique in the Box section. ROI, at 309-10. Complainant
believed that S1 had threatened her when she said that she was “on thin ice.” Id. at 310. S1
instructed Complainant to go to her office to talk about the incident, but Complainant refused
without a Union steward. Id. at 310. Complainant met with S1 and M1 with her Union
steward to explain her actions. Id. S1 requested the next step in progressive discipline for
Complainant’s failure to follow her instructions, her refusal to properly fan the mail, leaving
her work area to make a phone call, and refusing to go to S1’s office to discuss the situation.
Id. at 367-68. As a result, S1 issued Complainant a Notice of Removal, which was later
reduced to a suspension. Id. at 363-65, 385.

Regarding her day in court meeting on or around May 10, 2012, S1 met with Complainant
because she failed to follow the break schedule on May 7 and 8, 2012, and because she left
five pieces of mail on the floor from the previous night. ROI, at 539. S1 did not issue
discipline for the infractions. S1 held a day in court meeting with Complainant on June 28,
2012, after Complainant refused S1’s instruction to reconcile the 1412s that accumulated
during her absence. Id. at 311-12. Complainant eventually agreed to reconcile the 1412s, but
she signed the reports with S1’s initials. Id. at 312. Finally, S1 held a day in court meeting
with Complainant which led to the issuance of a Notice of Removal after Complainant signed
S1’s initials on the 1412s without her authorization. Id. Complainant failed to provide an
acceptable reason for her actions, and S1 issued the Notice of Removal for failure to follow
instructions and unacceptable behavior. Id. at 548-50. The record indicates that management
and Complainant agreed to a pre-arbitration settlement reducing the removal to a long-term
suspension with no back pay. Id. at 316.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's
summary judgment decision finding that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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. The requests 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 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 13, 2016
Date