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

Equal Employment Opportunity Commission

Mar 19, 2015

0120132684 (E.E.O.C. Mar. 19, 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. 0120132684

Hearing No. 530-2012-00028X

Agency No. 1C-081-0033-11

DECISION
On July 3, 2013, Complainant filed an appeal from the Agency’s May 30, 2013 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. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Aisle
Clerk, PS-7, at the Agency’s Processing and Distribution Center in Bellmawr, New Jersey.
On July 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Black), sex (female), and in reprisal for prior protected EEO
activity1

1 At the hearing on this matter, Complainant withdrew her claim of reprisal for prior protected
EEO activity.
when she was subjected to harassment by a co-worker. 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 EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, and the AJ held a hearing on January 15, 2013, and
issued a decision on May 7, 2013. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged.
0120132684

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STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS
It is well-settled that harassment based on an individual's race and sex is actionable. See
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). 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 sex and/or disability; (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).
Here, Complainant asserts that a disagreement she had with a former friend and co-worker
(CW1) resulted in several incidents in February 2011 that amounted to harassment. For
example, on February 4, 2011, CW1 tried to grab mail away from Complainant that she was in
the process of sorting. After this, CW1 became upset and started shouting and calling
Complainant names. Hearing Transcript (Tr.) at 78. On February 11, 2011, according to
Complainant, she met, in the presence of a supervisor, with CW1, who confronted here with
hostile questions. CW1 also stated that she did not like Complainant and was “never going to
speak to her again.” Tr. at 81. CW1 mocked Complainant and said “you sound like a pig.”
Id.

The AJ concluded that the allegedly harassing incidents “were not so pervasive as to constitute
harassment/hostile work environment on the basis of race and sex.” We concur that there is
no evidence that any of the claimed harassing actions committed by CW1 were based on her
race or sex. There is no evidence of racist or sexist slurs that would support an inference of
discriminatory animus. Nor did the evidence show that those actions, even if undertaken with
discriminatory animus, were so intense or frequent as to be properly characterized as severe or
pervasive. The AJ’s findings in this respect are supported by substantial evidence. For that
reason, Complainant’s claim of discrimination fails. We AFFIRM the Agency’s final order.

0120132684

3
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
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
0120132684

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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
March 19, 2015