Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

May 29, 2013

0120121459 (E.E.O.C. May. 29, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120121459

Hearing Nos. 410-2009-00076X
410-2010-00046X

Agency Nos. 4H-300-0335-07
4H-300-0219-08

DECISION

On January 31, 2012, Complainant filed an appeal from the Agency’s January 18, 2012 final
order concerning her equal employment opportunity (EEO) complaints alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq. 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 Carrier
Technician at the Agency’s Post Office in Lilburn, Georgia. Complainant had worked for the
Agency for 36 years, including 23 years in Lilburn. Her job was to case and deliver the routes
of regular carriers on their off days. In November 2006, a new Postmaster and Supervisor
were assigned to Lilburn, which was considered the worst performing office in the Atlanta
District.

On December 29, 2007, Complainant filed an EEO complaint (Agency No. 4H-300-0335-07)
wherein she claimed that the Agency discriminated against her on the bases of her age (58) and
in reprisal for her previous EEO activity when she was subjected to a hostile work
environment as follows:

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1. On September 11, 2007, she received a Letter of Warning, which was reduced to an
official discussion; and

2. On September 19, 2007, she was issued a Notice of 7-day Paper Suspension.

On July 9, 2008, Complainant filed a second EEO complaint (Agency No. 4H-300-0219-08)
wherein she claimed that the Agency retaliated against her when:

1. From March 30, 2008 – May 16, 2008, she received an inequitable amount of
overtime.

2. On May 15, 2008, she was issued a Letter of Warning.

3. On May 23, 2008, she received a Notice of 14-day Paper Suspension.

4. On June 5, 2008, she received a Notice of 14-day Paper Suspension.

5. On June 5, 2008, the Agency refused to reimburse her for work-related pay telephone
calls.

6. Pictures were taken of her car; and

7. She received numerous street observations.

With regard to the first complaint, the Agency dismissed the complaint on December 24, 2008.
Complainant filed an appeal with the Commission. In v. United States Postal
Service, EEOC Appeal No. 0120091681 (July 23, 2009), the Commission affirmed the
dismissal of the reprisal claim but found that the incidents should have been characterized as
evidence of ongoing harassment rather than as isolated disciplinary actions. The age-based
harassment claim was remanded for investigation. As for the second complaint, the Agency
accepted claims (1-5) for investigation and dismissed claims (6-7) on the grounds of failure to
state a claim. At the conclusion of both investigations, 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 hearings for each complaint.
The AJ consolidated the complaints, held a hearing and issued a decision on January 4, 2012.

The AJ noted Complainant’s testimony that her Supervisor frequently stood behind her,
berating her for her slow pace and urging her to work faster, followed her on her mail delivery
routes scrutinizing her work, badgered her for being slow in learning new case labels and told
her she was the worst carrier he had ever seen, and monitored her bathroom and water breaks.
Complainant further claimed that her Supervisor came into an apartment building where she
was delivering mail and screamed at her that he was tired of her slow pace and that she would
have to find another office at which to work.

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Complainant also argued that she received inequitable overtime in 2008, although she was on
the overtime desired list. Complainant stated that she received a Letter of Warning that was
allegedly for using unauthorized overtime. According to Complainant, she received
authorization from various supervisors for the overtime. The AJ noted that the Letter of
Warning was subsequently rescinded for no just cause pursuant to the grievance process. As
for the 14-day Paper Suspension issued to Complainant on May 23, 2008, for delaying the
delivery of mail, Complainant testified that she had been unable to deliver the mail because the
apartment complex had been gated and she had not been given the code. The AJ stated that
Complainant informed a Supervisor of the situation upon her return to the office. The AJ
noted that the suspension was rescinded pursuant to the grievance process.

With regard to the Notice of 14-day Paper Suspension issued on June 5, 2008, for expansion of
street time, Complainant was cited for spending seven minutes in a parking lot and thirteen
minutes at a gas station. Complainant produced evidence that based on the Agency’s
documented times, it would have been impossible for her to have made deliveries at the
recorded times if she had spent seven minutes in a parking lot. In terms of not being
reimbursed for work-related pay phone calls on eight separate dates, Complainant claimed that
the Postmaster would not permit reimbursement. The official, who denied reimbursement,
stated that she did so because Complainant had been seen on her cell phone in the past, she had
not reimbursed any employee for a phone call, and she was advised not to grant reimbursement
absent supporting documentation.

In support of Complainant’s position, the AJ noted that the Shop Steward testified that on
different occasions, he heard the Postmaster and Supervisor tell Complainant that she may need
to retire. According to the Shop Steward, the Supervisor disliked Complainant’s pace and thus
sought to discipline her for various, unrelated actions. The AJ stated that the Shop Steward
had also received two suspensions from the Supervisor. Further, the Shop Steward testified
that younger carriers had been disciplined by the Supervisor. A coworker testified that the
Supervisor would stand behind Complainant, urging her to work faster and following her on
routes. This coworker further testified that both the Supervisor and the Postmaster would
speak aggressively to Complainant.

In response, the Supervisor asserted that it was not necessary to stand behind her to monitor
her performance as his desk was situated so that he could view all the employees casing mail.
He stated that he only stood behind Complainant when he was performing an official count on
her route. The AJ noted that the Supervisor questioned Complainant concerning leaving her
vehicle door unlocked and failing to clock in with her time card. The Supervisor testified that
he sought to correct Complainant’s practice of clocking in before going to the bathroom or to
get a drink of water, which he believed violated Agency policy. The Supervisor claimed that
Complainant would take twenty to thirty minute breaks in the restroom. According to the
Supervisor, he requested that Complainant provide medical documentation if she had a
condition requiring an accommodation. The Supervisor stated that Complainant responded by
announcing to the entire work floor when she needed to use the restroom.

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With regard to the Letter of Warning issued for taking an extended lunch, the Supervisor stated
that he observed Complainant’s Agency vehicle in a restaurant lot at 12:07 and again at 12:55.
The Supervisor acknowledged that he closely scrutinized Complainant because her
performance was far below that of the other employees. The Supervisor testified that upon
commencing work in Lilburn, he sought to reduce inefficiency. Among the problems cited by
the Supervisor were overtime that was not in line with the mail volume, misestimating time of
delivery and staying focused at work. Management responded by substantially reducing
overtime for the carriers. The AJ observed that Complainant admitted that the Supervisor
posted a list of those who met or exceeded their office time and discussed the matter with each
carrier. The Supervisor testified that Complainant had a low volume route but still requested
assistance each day. The Supervisor asserted that Complainant was intentionally working
slowly to earn overtime. The Supervisor claimed that Complainant told him that she was going
to get overtime no matter what.

With respect to Complainant’s age, the Supervisor denied that he mentioned her age and that it
was Complainant who said she was slow because she is older. The Supervisor stated that he
based her pace on her demonstrated ability. The pace that a carrier is generally expected to
meet is casing eighteen letters and eight flats a minute.

The AJ found that based on the totality of the evidence, the hostility Complainant experienced
was not attributable to Complainant’s age or reprisal. The AJ found that management treated
Complainant more harshly than other employees and subjected her to more scrutiny due to her
work habits, attitude and performance. The AJ found the Supervisor’s testimony was credible
regarding Complainant’s reaction to his efforts to curb poor office practices. The AJ observed
that Complainant was intent on continuing to earn excessive overtime pay and working at her
own pace. The AJ discounted the testimony of the Shop Steward with regard to overhearing
management uttering remarks that Complainant should retire. The AJ reasoned that the Shop
Steward had an incentive to testify in a biased manner given that he had been disciplined twice
by the Supervisor. Further, the AJ observed that younger employees were disciplined for
work-related issues, and another older employee was not disciplined.

With regard to Complainant’s claim of inequitable overtime, the AJ found that the Agency’s
actions were not deliberate or adverse. The AJ noted that the overtime an employee accrues
on his or her route does not count as equitable overtime. Equitable overtime is determined by
quarter and if at the end of a quarter the distribution of overtime among those on the overtime
desired list is inequitable, then supervisors are given the next quarter to correct the inequity.
Those carriers who still have inequitable overtime are then paid for equitable overtime even if
they have not done the work. The AJ noted that the Supervisor testified that he attempted to
equalize the equitable overtime for Complainant by taking hours off her route and replacing
them with hours on another route. However, the Supervisor stated that he was unable to
accomplish this because Complainant would continuously call in requesting extra overtime on
her route, which prevented her from performing overtime on another route. The AJ stated that
Complainant was thus paid for the overtime she worked and for the overtime she did not work.

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The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to harassment as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant cites the testimony of witnesses on her behalf who stated that the
Supervisor treated her unlike the other carriers and subjected her to a hostile work
environment. Complainant maintains that the Agency’s witnesses were not credible.
Complainant argues that she received the least number of overtime hours compared with the
other eight carriers. Complainant contends that one of the supervisors admitted at the hearing
that she called the office when requesting overtime and that there were carriers who had
unauthorized overtime. Complainant maintains that all of her overtime was authorized.
Complainant also suggests that the AJ was predisposed to rule against her and that the AJ erred
in her interpretation of Agency policies.

In response, the Agency asserts that the officials who took actions against Complainant had
legitimate, nondiscriminatory reasons for doing so, in particular Complainant’s unsatisfactory
work performance. The Agency cites two instances where Complainant took an inordinate
amount of office time for the mail volume she had for a route. The Agency notes that two of
Complainant’s coworkers for many years testified that her job performance was poor. The
Agency states that one coworker testified that Complainant had carried his route for several
years on his day off. According to the carrier, Complainant routinely received assistance from
another carrier and worked overtime, and still left mail for him to deliver when he returned
from his day off. With respect to Complainant’s claim that she used less overtime than the
other carriers in Fiscal Year 2008, the Agency notes that Complainant was on sick leave for
approximately ten weeks that year. The Agency also points out that supervisors regularly
handed off a section of whatever route Complainant was delivering to another carrier to
deliver, and Complainant was still working substantial overtime.

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.

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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS

To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or 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 the Complainant’s statutorily protected class; and (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 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently
severe and 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). The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994).

Upon review of the record, we find that the AJ’s factual findings are supported by substantial
evidence, and we find no reason not to defer to her credibility determinations. The Agency
explained that Complainant was scrutinized closely due to her slow pace in delivering her route
and dilatory practices within the office. The Lilburn Post Office was regarded as the least
efficient office in the Atlanta District. New management instituted measures designed to
improve the situation and reduce the excessive use of overtime. Management credibly testified
to instances where Complainant took an excessive amount of time in preparing her mail
volume for delivery and in delivering her routes. The record establishes that Complainant’s
primary objective was to manipulate the manner in which she delivered her route so as to
ensure that she would regularly receive overtime.

With regard to the arguments submitted on appeal, we find that they do not undermine the AJ’s
factual findings. Initially, we observe no persuasive evidence to support Complainant’s
contention that the AJ was predisposed to rule against her or that the AJ erred in her
interpretation of Agency policies. As to Complainant receiving less overtime than her
coworkers in Fiscal Year 2008, Complainant fails to take into account that she had
approximately ten weeks of sick leave during this period. We observe little if any relevance in
the inconsistencies that Complainant points out concerning the Agency’s witnesses.

As to Complainant’s witnesses’ testimony that she was subjected to treatment that was more
critical and involved greater scrutiny than other carriers, the record supports the AJ’s finding
that it was not attributable to Complainant’s age or prior protected activity. The record
indicates that Complainant worked at a slower pace; the Agency was attempting to improve the
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office’s performance. The actions taken by the Agency to rectify this situation were directed at
Complainant because of Complainant’s deficient job performance and not her age or prior EEO
activity. Younger carriers were also disciplined for unsatisfactory job performance. Based on
a consideration of all the evidence in the record, we discern no basis to disturb the AJ’s
decision. The Agency’s final order 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
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”
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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

May 29, 2013
Date