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

Equal Employment Opportunity Commission

Aug 6, 2015

01-2013-2070-0500 (E.E.O.C. Aug. 6, 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
(Eastern Area),
Agency.

Appeal No. 0120132070

Agency No. 1C-441-0017-12

DECISION
On April 29, 2013, Complainant filed an appeal from the Agency’s March 21, 2013, 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. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Maintenance
Support Clerk, PS-6, at the Agency’s Processing & Distribution Center in Cleveland, Ohio.
On April 26, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), disability and
in reprisal for prior protected EEO activity when:

1. her annual leave and tri-party requests were denied;
2. on unspecified date(s), she was denied overtime;
3. on a weekly basis, she was denied the opportunity to perform her project
duties;
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4. coworkers talked to her disrespectfully;

5. she was denied a schedule change;
6. she was denied training;
7. she was issued a Notice of Suspension;
8. she was subjected to sexual harassment;
9. she was subjected to harassment and disparate treatment;
10. management refused to accept her Form CA-2 (notice of injury or illness); and
11. she was ridiculed by co-workers.

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
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.

ANALYSIS AND FINDINGS

DISPARATE TREATMENT DISCRIMINATION

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that 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). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).

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Claim # 1. (Leave Requests Denied)
According to the Agency, Complainant’s leave requests were denied during the period
February 14 through February 21, 2012 because there were staffing shortages during that
holiday week and one staff member was in training. This is a legitimate, nondiscriminatory
reason for the Agency’s action.
Claim # 2. (Overtime Denied)
The Agency denies that Complainant was denied overtime, pointing out that Complainant
worked more overtime than one of the comparators she identified, a co-worker on Tour 3.
The Agency also notes that the comparator whom Complainant identified as receiving more
overtime works on Tour 2 during which more overtime was available due to a special project
being performed on that tour. This is a legitimate, nondiscriminatory reason for the Agency’s
action.
Claim # 3. (“Project Duties” Denied)
The Agency explains that Complainant was given less opportunity to perform these special
duties because her tour was understaffed compared to other tours, allowing less latitude for
such assignments. This is a legitimate, nondiscriminatory reason for the Agency’s action.
Claim # 5. (Schedule Change Denied)
Complainant identified two co-workers who, according to Complainant, received preferential
schedule changes. The record shows that those employees did not, in fact, receive schedule
changes.
Claim # 6. (Training Denied)
Complainant asserts, without elaboration, that she was denied training. She acknowledges that
management explained to her that training was not available because of “short staff.” This is a
legitimate, nondiscriminatory reason for the Agency’s action. The Agency also points out that
Complainant received training in Excel and EEO right and remedies.
Claim # 7. (Notice of Suspension)
The Agency explained that Complainant had been issued a notice of suspension because she
engaged in unacceptable conduct, including yelling and harassing or disrespecting other
employees in the workplace and causing other employees to feel threatened by her actions.
This is a legitimate, nondiscriminatory reason for the Agency’s action.

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Claim # 10. (Form CA-2 Rejected)
The Agency explained that a Form CA-2 (Notice of Occupational Disease and Claim for
Compensation) was rejected on August 3, 2012, because Complainant had filled it out
improperly. Ultimately, a corrected CA-2, dated August 14, 2012, was submitted and
accepted. This is a legitimate, nondiscriminatory reason for the Agency’s action.
For each of the foregoing claims, the Agency has either refuted the underlying facts asserted
by Complainant or offered a legitimate, nondiscriminatory reason for its action. In each case,
Complainant has failed to show the Agency’s version of the facts to be incorrect. Therefore,
Complainant has failed to prove that she was discriminated against with respect to each of the
foregoing claims of disparate treatment discrimination.
HARASSMENT – HOSTILE WORKPLACE/SEXUAL HARASSMENT
Claims ## 4 (Disrespectful Co-workers), 8 (Sexual Harassment), 9 (Harassment) and 11
(Ridiculed by Co-workers)

It is well settled that harassment based on an individual's race, sex, disability, or prior
protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986),
see also Olson v. Housing and Urban Development, EEOC Request No. 05930413 (June 16,
1994) (finding that acts of harassment directed at an employee because of a physical or mental
disability, if sufficiently severe or pervasive, violate the Rehabilitation Act). In order to
establish a claim of harassment under those bases, Complainant must show that: (1) she
belongs to the statutorily protected classes and engaged in prior EEO activity; (2) she was
subjected to unwelcome conduct related to her membership in those classes and her prior EEO
activity; (3) the harassment complained of was based on race, sex, disability or prior protected
activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work
performance 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).
According, to the report of investigation, Complainant declined to provide the investigator with
any detailed evidence of the circumstances of the alleged harassment, including sexual
harassment, to which she claims to have been subjected. ROI at 24. 25. She has failed to
adduce evidence that any of the claimed harassing actions undertaken by Agency management
or by Complainant’s co-workers were based on her statutorily protected classes or her prior
protected activity. For example, there is no evidence of a racist slur or disability-based
ridicule that would support an inference of discriminatory animus. Without evidence of this
nature, Complainant’s harassment claims fail.

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final
agency decision.

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
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
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

Date
August 6, 2015