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

Equal Employment Opportunity Commission

Jul 16, 2015

01-2013-0607-0500 (E.E.O.C. Jul. 16, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120130607

Hearing No. 470-2012-00079X

Agency No. 4J-460-0112-11

DECISION
On November 16, 2012, Complainant filed an appeal from the Agency’s October 15, 2012
final decision concerning her equal employment opportunity (EEO) complaint alleging
retaliation in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq

.
Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Post Office in Michigan City, Indiana.

On August 30, 2011, Complainant filed an EEO complaint wherein she claimed that the
Agency subjected her to discriminatory harassment in reprisal for her prior protected EEO
activity when:

1. On June 7, 2011, a statement was made about her by a coworker and
management failed to investigate the statement.

2. On June 15, 16 and 28, 2011, Complainant was harassed at her case and
subsequently her PS Form 3996 for Auxiliary Assistance was reduced or
disapproved.

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3. On June 15, 2011, management delayed making pay adjustments for February
19, 2011, and May 16, 2011.

4. Complainant was given an investigative interview and subsequently on June 28,
2011, she was issued a Letter of Warning.

5. On June 28, 2011, Complainant was required to provide documentation to
support her request to leave early.

6. On July 23, 27, August 8, 12 and 24, 2011, Complainant was required to
submit medical documentation for FMLA and OWCP absences.

7. On September 20, 21 and 23, 2011, Complainant was not provided eight hours
of limited duty work.

8. On October 19, 2011, Complainant’s request for sick leave dependent care (PS
Form 3971) was mixed in with undeliverable mail.

9. On October 21 and 24, 2011, Complainant’s PS Form 3996 (Request for
Auxiliary Assistance) was disapproved.

10. On October 26, 2011, management delayed making pay adjustments of 1.84
hours of continuation of pay for September 20, 2011.

11. On October 29 and 31, 2011, Complainant’s traumatic injury was not processed
in accordance with Agency rules/regulation/policies, including being denied
limited duty.

12. On November 2, 2011, Complainant was threatened to be charged 1.80 hours
AWOL.

13. On June 13, 15, 2011, and July 13, 2011, Complainant was harassed when she
called in from the street.

14. On June 28, 2011, Complainant was given improper instructions.

15. On an unspecified date, documents were taken from Complainant’s work area.

16. On August 2, 2011, Complainant was given a Pre-Disciplinary Interview.

17. On October 13 and 17, 2011, Complainant’s PS Form 3996 (Request for
Auxiliary Assistance) was disapproved.

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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 (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 Agency determined that Complainant failed to prove that the Agency retaliated against
her. With regard to claim (1), Complainant claimed that management did not attempt to
provide her with reasons why it did not thoroughly investigate her coworker’s libelous
statement about her. Complainant stated that she was issued a Letter of Warning based on this
statement. The Agency stated as to claim (1) that a union official wrote a letter about
Complainant to management which led to her Letter of Warning for failure to follow
instructions when she left the workroom floor. The Agency asserted that an investigative
interview was held with Complainant prior to the Letter of Warning.

As for claim (2), Complainant claimed the Officer in Charge (OIC) did not cite or provide a
reason for his disapproval of her requests for auxiliary assistance on June 15, 16 and 28, 2011.
The Agency stated that on June 15, 2011, Complainant requested one hour of auxiliary
assistance due in part to a pre-disciplinary interview, and the OIC disapproved the request.
The Agency also noted two other requests for auxiliary assistance where Complainant
requested one hour and fifteen minutes and one hour, respectively, and received forty minutes
and twenty minutes of auxiliary assistance, respectively. With regard to being harassed at her
case, Complainant stated that she became annoyed on June 15, 2011, when the OIC instructed
her to delay time dated mail and also held a pre-disciplinary interview with her regarding the
information contained in the coworker’s alleged libelous statement. Complainant stated that
later that day, the OIC became argumentative with her when she called in to notify him that
she would have to bring back mail in order to adhere to her eight-hour per day medical
restriction. Complainant claimed that on June 16, 2011, a coworker spoke to her in an angry,
condescending manner. According to Complainant, on June 28, 2011, the OIC interfered with
her work performance when he talked to her about how long it took her to deliver mail on her
route the previous day.

The OIC denied having knowledge of Complainant being harassed at her case. With regard to
the auxiliary assistance requests, the OIC noted that there is no provision on the form to
indicate the reason a request is disapproved. The OIC stated that if the request was
disapproved, he most likely was told to curtail mail in order for Complainant to leave to
deliver her route on time.

With regard to claim (3), Complainant stated that the OIC delayed making a pay adjustment for
when she submitted a PS Form 3671 requesting a pay adjustment for eight hours of leave
without pay on February 19, 2011, as she notified him that she was seeking to be reimbursed
for continuation of pay for the eight hours of leave without pay. Complainant also stated that
she notified management that she had been improperly charged .50 hour for lunch on May 16,
2011, even though she was on the no lunch list that day. Complainant asserted that the OIC
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did not ask her to sign either pay adjustment until June 15, 2011. The OIC denied being aware
of Complainant’s pay adjustments being delayed. The OIC stated the pay adjustments are
completed when necessary and as far as he knows, they are always timely.

In terms of claim (4), Complainant maintained that the OIC falsified information upon which to
base the Letter of Warning issued to her. Complainant stated that the carrier check off list
does not include the phrase, “Don’t leave workroom floor to go in back offices without
permission,” for which she was charged in the Letter of Warning. The Acting Supervisor,
Customer Services, stated that Complainant was issued a Letter of Warning for failing to
follow instructions when she left the workroom floor without permission. The OIC stated the
investigative interview was conducted to afford Complainant an opportunity to provide her
version of the story in order to determine if corrective action was warranted.

With respect to claim (5), Complainant stated that although the OIC approved her request to
leave twenty minutes early on June 28, 2011, he nonetheless requested documentation for her
leave request. As for claim (6), Complainant cited five dates upon which the OIC approved
her requests for FMLA and OWCP absences, but required her to submit additional
documentation. Complainant stated that she was not informed of a reason that she needed to
do so. With respect to claims (5-6), the OIC stated that Complainant was required to provide
documentation in support of her request to leave early and her FMLA and OWCP absences to
protect the interest of the Agency. The Agency determined that the requirement to provide
documentation was not unwarranted or unreasonable.

With regard to claim (7), Complainant stated that she sustained a left shoulder injury and upon
returning to the office from a medical appointment discussed her restrictions with management.
Complainant asserted that she informed the OIC she could case the tubs and stacks of
undelivered mail on the floor for numerous routes in the office. Complainant claimed that she
reminded the OIC that she could case mail because she does so with her right hand. According
to Complainant, the OIC responded that there was no productive work available. Complainant
stated that she was ready and willing to perform duties within her restrictions, there was work
available, and she was being sent home improperly. The Agency noted that the record
contains a Step B decision wherein it was decided that management violated the collective
bargaining agreement. The grievance decision stated that management shall process a pay
adjustment for Complainant converting 4.57 hours of annual leave used on September 21,
2011, to administrative leave. The Agency acknowledged that Complainant was not provided
eight hours of limited duty work for three dates, but it stated that Complainant was assigned
work that was available within her restrictions, and no additional necessary work was available
within her restrictions. The Agency maintained that Complainant was compensated in full for
the three days at issue.

In terms of claim (8), Complainant stated that a copy of her approved request for sick leave
dependent care was mixed in on her desk with undelivered mail from the previous day’s
delivery of her route. The Agency stated that Complainant did not provide, and the
investigation did not uncover, evidence that Complainant’s request for sick leave dependent
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care was mixed in with undeliverable mail. As for claim (9), Complainant claimed that the
OIC refused to provide her with auxiliary assistance on two dates in October 2011.
Complainant stated that she notified management she would have to bring back mail on each
date in order to stay within her eight-hour schedule. According to the Agency, the request on
October 21, 2011, was approved by the Acting Supervisor, Customer Services, and the request
on October 24, 2011, was disapproved by the OIC. The OIC stated he does not know why the
request for auxiliary assistance was disapproved as there is no provision to indicate why a PS
Form 3996 is disapproved.

With respect to claim (10), Complainant asserted that she was supposed to be paid 1.84 hours
of continuation of pay for the time she was at a medical appointment on September 20, 2011,
rather than it being charged to annual leave. Complainant claimed management did not
provide a reason for the delay in her pay adjustment. The Agency noted that a pay adjustment
occurred on October 26, 2011, changing Complainant’s hours from 6.41 annual leave hours to
4.57 annual leave hours, a difference of 1.84 hours. The OIC asserted that there was no delay
in making the pay adjustment of 1.84 hours. The OIC stated that once they became aware of
the situation, the pay adjustment was submitted.

With regard to claim (11), Complainant claimed that the OIC sent her home despite the fact
that there was additional limited duty work she could have performed. Complainant stated that
the OIC told her to case mail on route 21 and afterwards do route 20 as well, but he instead
told her to go home before she could work on route 20. The Agency asserted that
Complainant’s accident claim forms were completed and submitted appropriately and she was
not denied limited duty. In terms of claim (12), Complainant claimed that the OIC attempted
to intimidate her by threatening to charge her with 1.80 hours of AWOL. According to
Complainant, the OIC threatened to issue the AWOL if she did not allow him to have a copy
of her medical documentation supporting her sick leave request. Complainant stated she was
not charged with being AWOL even though she did not give the OIC a copy of her medical
documentation. The Agency determined that it acted reasonably when the OIC informed
Complainant that failure to provide documentation could lead to her being charged AWOL.

As for claim (13), Complainant referenced three dates where she was allegedly harassed when
she called in from the street. According to Complainant, the OIC became argumentative and
rude when she called in during the afternoon to notify management she would need to bring
back mail to stay within her eight-hour schedule. Complainant argued that the denial of her
requests for auxiliary assistance in the morning encouraged a hostile work environment against
her as carriers blamed her when they were forced to deliver the mail she returns in the
afternoon. The OIC and the Acting Supervisor denied that Complainant was harassed when
she called from the street. The Agency noted that if Complainant contacted management from
the street, it was because she could not complete her route within the eight-hour requirement.

With respect to claim (14), Complainant referenced improper instructions she received from
the OIC to deviate from her normal route sequence and to provide documentation upon her
return from an out of town appointment. Complainant stated that the Acting Supervisor,
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Customer Services, also improperly instructed her to swipe on the time clock to union time.
The OIC and the Manager, Post Office Operations, denied that they issued Complainant
improper instructions. The Manager stated that management has a right to manage the
workload of all employees. As for claim (15), Complainant asserted that documents were
removed from her work area and that she notified management, but management did not
respond verbally or in writing.

With respect to claim (16), Complainant stated that she was given a pre-disciplinary interview
on August 2, 2011. Complainant maintained that she was subjected to intimidation tactics
during the pre-disciplinary interview by the Acting Supervisor, Customer Services, because the
OIC knew he falsified documentation used for the Letter of Warning, and the pre-disciplinary
interview was about her giving a false statement about the OIC. The Agency stated that
Complainant received a pre-disciplinary interview to determine whether she provided false
statements about the OIC’s character. In terms of claim (17), Complainant referenced two
dates in October 2011 where her requests for auxiliary assistance were denied. The Agency
asserted that the requests were approved on these dates.

With regard to complainant’s claim of harassment, the Agency determined that even if all of
the actions had taken place as alleged, they were neither sufficiently severe nor pervasive to
constitute a hostile work environment. The Agency also asserted that each of the three
management officials stated that Complainant did not inform them that she was being harassed.
Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS
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 a protected basis, i.e., in this case, prior protected activity.
Only if Complainant establishes both of these elements, hostility and motive, does the question
of Agency liability present itself.

The Agency has presented an explanation for all of its actions. The Agency stated as to claim
(1) that it investigated the statement made against Complainant by the Union Steward prior to
issuing Complainant a Letter of Warning. Claim (4) concerns this Letter of Warning and the
Agency stated it was issued because Complainant failed to follow instructions when she left the
workroom floor without permission. Claims (2), (9), and (17) address requests for auxiliary
assistance. The Agency explained that where the requests were not approved, it would have
been to curtail mail so Complainant could complete her route on time. The Agency stated as
to claims (3) and (10) that the pay adjustments at issue were effected in a timely manner. In
claims (5-6), where Complainant submitted leave requests, the Agency explained that
Complainant was required to provide documentation because of the frequency with which she
took leave. As for claim (8), the Agency stated that Complainant did not provide evidence to
support her position that her sick leave dependent care request was mixed in with undeliverable
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mail. The Agency stated as to claim (12) that Complainant was not threatened with being
charged AWOL but rather was informed that failure to provide medical documentation
supporting her sick leave request could result her in being charged AWOL.

The Agency denied Complainant’s contention in claim (13) that she was harassed when she
called in from the street. According to the Agency, the OIC had to deal with Complainant in
these circumstances when she was unable to complete her route within her eight-hour day.
The Agency asserted that Complainant argued she was harassed whenever she was questioned
regarding her job performance. As for claim (14), the Agency stated that Complainant did not
receive improper instructions but rather the OIC asked her to deviate from her normal route
pattern because he was attempting to determine why she had a variance the previous day. The
Agency also denied that Complainant was harmed by the Acting Supervisor’s instruction that
Complainant move to union time for the issuance of the Letter of Warning. In terms of claim
(15), the Agency stated that it could not conduct an investigation concerning the alleged
missing document as Complainant offered no idea as to who might have taken the document.
With respect to claim (16), the Agency maintains that it appropriately gave Complainant a pre-
disciplinary interview on August 2, 2011, after Complainant made statements about the OIC.
The Agency stated that the interview was conducted in order to afford Complainant the
opportunity to tell her version so that management could determine whether corrective action
was warranted.

With respect to claims (7) and (11), Complainant claimed that she was denied limited duty
work. However, the OIC asserted that he assigned Complainant work that was available
within her restrictions and no additional necessary work was available within her restrictions.
Additionally, as to claim (11), the Agency stated that the claim forms were completed and
submitted appropriately. We find that the Agency has articulated legitimate, nondiscriminatory
reasons for its actions in each of the matters at issue.

Upon review of the arguments set forth by Complainant, we are not persuaded that she was
discriminated against in reprisal for her prior EEO activity. Complainant has not presented
arguments or evidence to establish that the Agency’s reasons for its actions were hostile or
abusive. The record indicates several situations where rather than taking responsibility for her
own conduct, Complainant attempted to shift the blame toward Agency management. The
record also reflects instances where Complainant assigned retaliatory intent to the Agency
when the Agency acted reasonably and without any significant delay. In terms of the instance
where Complainant was denied limited duty in claim (7), we take note of the fact that the Step
B Grievance Decision found that a violation occurred when Complainant was sent home and
required to use annual leave. The Step B decision noted that management did not present
Complainant with a modified job offer and that it was not logical to say that no work existed
when it was unknown what tasks Complainant could have performed. We discern based on the
apparent relationship between Complainant and the OIC that this violation reflected the lack of
harmony and occasional rancor between them. However, we do not find sufficient evidence of
a retaliatory motivation on the part of the OIC. There is very little evidence to support a
finding that Complainant’s prior EEO activity was a factor in the OIC’s treatment of
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Complainant in terms of any of the alleged incidents, including the denial of limited duty at
issue in claim (7).

CONCLUSION
The Agency’s determination in its final decision that no discrimination occurred is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 16, 2015