Chara S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 24, 2016

0120150821 (E.E.O.C. Aug. 24, 2016)

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

Chara S.,1
Complainant,

v.

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

Appeal No. 01-2015-0821

Agency No. 1B-061-0033-14

DECISION

The Commission accepts Complainant’s appeal from the November 7, 2014 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center in Stamford, Connecticut. On or
about February 14, 2014, Complainant alleged that the Acting Manager (M1) falsely accused
her of “enrouting” packages. Complainant contended that she is very meticulous and she
enroutes all packages whether the scanner is working or not. In addition, Complainant claimed
that M1 informed her that a bill of lading was incorrectly completed. Complainant disagreed
and claimed that the accounting will be incorrect if a driver picked up only a partial number of
boxes filled with packages. Complainant further claimed that M1 told her to “pep it up” with
the scanning of parcels because the express mail cannot be late.

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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On several dates in February 2014, Complainant alleges that management instructed her to
clock over to “down time” while other employees did her work. Complainant acknowledges
that she was paid while on down time, but claimed that management singled her out as there
was work in Automation or another area she could have performed.

On February 19, 2014, Complainant alleged that she was instructed to do four different things
at the same time including doing express mail, parcels, expediting, scanning parcels and
obtaining the deposits for the armored truck. Complainant claimed that she received no
explanation for being required to perform all of these functions.

On February 28, 2014, Complainant claimed that she requested grievance time from her
supervisor (S1), but M1 screamed at her when she was in the Union office. Further,
Complainant alleged that M1 told her that she “would take care of her and the situation,” but
the Union Vice President told her to punch out on grievance time. Further, Complainant
claimed that at her shift ending time, M1 barged into the Union office and ordered her to
punch out.

On an unspecified date, Complainant contended that she was asked to work two hours of
overtime as nobody had performed her duties when she was off for two days, but M1 made her
punch out and go home. Complainant alleged that M1 told her that someone else would do the
work, but the work was still there the next day.

On April 16, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(Caucasian) and color (White) when:

1. On or about February 14, 2014, the Acting Manager accused her of not enrouting
the parcels; told her that a bill of lading was filled out incorrectly, and; told her to
“pep it up”
2. On February 14, 2014; February 18, 2014, and other unspecified dates, she was
instructed to clock over to "down time" while other employees did her work;

3. On February 19, 2014, she was instructed to do two jobs at once;

4. On February 28, 2014, the Acting Manager threatened her by saying she “would
take care of her and the situation;” and

5. On an unspecified date, she was not allowed to work overtime

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). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).
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In the FAD, the Agency initially determined that the alleged incidents were not sufficiently
severe or pervasive to establish a hostile work environment. Further, the Agency found that
there was no evidence that the alleged incidents were based on discriminatory animus. For
example, as to claim (1), M1 denied specifically accusing Complainant of enrouting the
parcels; rather, she brought the mistake to the attention of everybody that worked in the area.
In addition, M1 denied discussing an incorrect bill of lading with Complainant or telling her to
“pep it up.”

Regarding claim (2), M1 attested that Complainant remained in pay status when instructed to
move to down time, which is another way of saying the employee is on “stand-by" when there
is no work available which happens to other employees as well. With respect to claim (3), M1
confirmed that Complainant worked on this date handling express mail in the morning and,
upon its completion, filled in as an expediter. Further, M1 explained that the deposits task
consisted of retrieving a registry bag from the Registry Room and signing it over to the
armored car representative, and this only took approximately 10 minutes. M1 and S1
confirmed that these tasks are no different than other employees working in the area cover.

Regarding claim (4), M1 contended that she never screamed or threatened Complainant and
only recalled that Complainant was in the Union office when her normal shift end time was
approaching so she went to the union office to remind Complainant and the Union that the
Agency would not pay overtime for Union time.

Finally, as to claim (5), M1 affirmed that on one occasion, she saw Complainant still working
after the end of her shift and told her she needed to clock out because there was no need for
her to be working overtime. M1 stated that another supervisor had told Complainant that she
could continue working, but all the work could have been completed during normal business
hours.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged. Complainant filed the
instant appeal without submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS

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
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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.

As Complainant chose not to 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. Here,
Complainant asserted that based on her protected classes, management subjected her to a
hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to her. The Commission concludes that the conduct alleged is
insufficiently severe or pervasive to establish a hostile work environment. Even assuming that
the alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
there is no persuasive evidence in the record that discriminatory animus played a role in any of
the Agency’s actions. The record reflects that the alleged incidents were more likely the result
of routine supervision, managerial discipline, personality conflicts, and general workplace
disputes and tribulations.

Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
explanation was a pretext for discrimination. As a result, the Commission finds that
Complainant was not subjected to discrimination 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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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:

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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.

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
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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

August 24, 2016
Date