Chau Q.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Oct 26, 2018

0120171099 (E.E.O.C. Oct. 26, 2018)

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

Chau Q.,1
Complainant,

v.

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

Appeal No. 0120171099

Agency No. 1G756001716

DECISION

On February 1, 2017, 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 10, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the final agency decision (FAD) properly found that Complainant did not establish that
she was discriminated against or subjected to harassment for prior EEO activity with regard to 7
incidents which formed the basis of her hostile work environment claim.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s Network Distribution Center facility in Dallas, Texas. On April 27, 2016, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 as evidenced by 7
separate incidents to include: issuing her a letter of warning (LOW); laughing at her; not inviting
her to eat when other employees were; following her; and vandalizing her car.

The Agency asserts that Complainant was issued a LOW for unacceptable conduct; that no
harassment with discriminatory animus occurred as alleged; and that an internal review was being
conducted because of Complainant’s allegations.

The facts are as follows:

Complainant has alleged that Acting Manager Distribution Operations (S1), Supervisor,
Distribution Operations (S2), and Plant Manager (S3) intentionally subjected her to discriminatory
harassment based on retaliation for prior EEO activity.

Claim 1: On February 24, 2016, she was given a discussion.

Complainant testified that on February 24, 2016, S2 gave her a discussion at the Drop Shipment
Area Standup Desk. She claimed S1 asked S2 to give her the discussion. Complainant alleged
the discussion was given for attendance on dates that were in the prior year and she had already
provided Family and Medical Leave paperwork covering the dates. She averred that she disagreed
with the reason for the discussion because S1 was on a different tour and had been told not to
supervise or address Complainant's attendance, and because her supervisor was aware of some of
the absences which were protected.

S1 explained that management asked her to help with attendance control. She averred
Complainant's supervisor at the time was S2; and maintained that S2 gave Complainant a
discussion about her attendance. However, she was not certain of the date. She asserted that she
gave S2 the names of three employees under his supervision whose Postal Service (PS) Forms
3972 needed to be reviewed and who needed discussions. Complainant was one of the three
employees.

S1 stated that she did not recall if S2 gave the discussions on the same day or different days. She
contended Complainant had some unprotected absences during this 90-day window, which merited
the discussion. S1 stated that Complainant’s prior EEO activity was not a factor in the matter.

S2 averred that he did not recall the date Complainant was given a discussion. He explained that
at the time he was following instructions of his manager but that he did not recall why he was
instructed to give Complainant a discussion.

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Claim 2: Her supervisor rolled her eyes and leered at her.

Complainant alleged S1 rolled her eyes and leered at her on May 26, 2016 and June 1, 2016. She
further claimed that S1, while looking at her, walked by and burst out laughing.

S1 averred that she did not roll her eyes and leer at Complainant as alleged. She maintained
Complainant's prior EEO activity was not a relevant factor as the incident never occurred.

Claim 3: Her supervisor brought food in and invited everyone to eat but not her.

Complainant alleged that on an unspecified date, S1 brought in food and told employees they were
invited but did not invite her. She claimed she was left on the workroom floor and the entire work
Area staff went in the breakroom.

S1 asserted that she did not bring any food to the facility and invite everyone in Complainant’s
work area to eat. She explained that some of the employees had a birthday party and many of the
employees in the building had an opportunity to eat until the food was gone. S1 noted it was
Mother’s Day when this occurred. She maintained a celebration was initially planned for the areas
that she supervised; however, there was an abundance of food, so it was shared with other areas.

S1 affirmed it was her decision to permit the party; however, she reiterated she did not bring any
food for the event or invite employees from Complainant's work area to eat.

S1 clarified she had no discussion with Complainant about the issue as she was instructed by
management not to have any contact with Complainant after Complainant filed a complaint with
the District office.

S1 asserted Complainant's prior EEO activity was not a factor in the matter.

Claim 4: In May 2016, her supervisor wanted her to sign paperwork she had already filled out
and then laughed at her.

Complainant attested that she was called to the Attendance office sometime in May 2016, about a
date in which management said she was a no-call, no-show. She claimed that when she showed
management where she had called in on that day and when she refused to sign the paperwork, S1
laughed and argued so loudly that it startled her. Complainant maintained no other manager had
laughed at her. She alleged she believed S1 was trying to get her to sign an Absent Without Office
Leave (AWOL) letter to set her up for discipline.

S1 attested she did not ask Complainant to sign any paperwork or laugh at her. She explained she
had not spoken to, or had any interaction with Complainant as management told her not to have
any contact with Complainant because she had filed a complaint with the District office. S1 noted
she had no knowledge of any paperwork. She asserted Complainant's prior EEO activity was not
a factor in the matter.
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Claim 5: Her supervisor followed her everywhere she went at work.

Complainant claimed S1 followed her all the way down the hall on May 26, 2016 and on June 1,
2016. She averred no other managers had followed her.

S1 asserted she did not follow Complainant as alleged. S1 reiterated she was instructed by
management not to have any contact with Complainant due to her having filed a complaint with
the District office. She averred Complainant's prior EEO activity was not a factor in the matter.

Claim 6: She was written up for losing her timecard.

Complainant claimed she was told the reason she was written up for taking her timecard was that
her timecard was postal property and she was not supposed to take it from the timecard rack.

Management confirmed that the incident occurred; and that Complainant had been issued a LOW
for unacceptable conduct.

Claim 7: Her car was vandalized in the employee parking.

Complainant stated that she believed S1 paid someone to tamper with her car. She explained that
she believed this because she was told S1 had paid an employee $100.00 to get her a tag for her
car. Complainant averred that two colleagues witnessed her tires being flat.

S1 averred she did not have any knowledge of Complainant's car being vandalized nor was she
involved in the incident.

S3 asserted he was not aware of Complainant's car being vandalized.

At the conclusion of 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 Equal Employment
Opportunity Commission Administrative Judge. 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). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant, through her representative, disagrees with the Agency’s conclusion in its FAD that,
among others, she did not establish that discrimination occurred; and maintains that Complainant
continues to be subjected to harassment at the hands of management.

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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,
§ 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

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially establish a prima facie case by demonstrating that he or she
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. 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, 441
U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the
agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of reprisal discrimination;
we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this
case, Complainant contends that the fact she engaged in prior EEO activity is a reason to believe
that management's actions were based on reprisal. The Agency asserts, however, that
Complainant’s prior EEO activity was not a determining factor in its actions; and that her
supervisors were working within their managerial capacity in reviewing her attendance records,
having official discussions with her regarding attendance deficiencies, permitting employees to
have birthday and/or holiday celebrations during work duty hours, and issuing disciplinary actions
to her for work-related misconduct. We find no persuasive evidence of pretext. As Complainant
did not request 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.

With respect to Complainant’s harassment claim, we find that even if these matters occurred
exactly as alleged, i.e., S1 rolled her eyes at Complainant, leered and laughed at her, did not invite
her to an office party, followed her on occasion, there is no persuasive evidence that they took
place due to Complainant’s prior EEO activity, nor do we find that they were so severe or pervasive
as to rise to the level of unlawful harassment. The EEO statutes are not meant to be a civility code.
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With respect to the allegation regarding Complainant’s car being vandalized, we find no evidence
linking this matter to S1 or any other Agency employee. Complainant merely speculates that S1
was involved.2
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 because the preponderance
of the evidence in the record does not establish that discrimination occurred.
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.
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).
2 To the extent that Complainant maintains that she is still being subjected to discrimination, she
is advised to contact an EEO counselor about these subsequent allegations.
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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 26, 2018
Date