Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 12, 2013

0120113320 (E.E.O.C. Sep. 12, 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
(Capital Metro Area),
Agency.

Appeal No. 0120113320

Hearing No. 430-2010-00146X

Agency No. 4K-230-0204-09

DECISION

On May 16, 2011, Complainant filed an appeal from the Agency’s April 14, 2011 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 for de
novo review 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 Rural Carrier at
the Agency’s Post Office in Hayes, Virginia. In February 2008, Complainant and several
other female Carriers filed a complaint alleging that they were harassed on the basis of sex by
a male co-worker and removed in reprisal for opposing the harassment.1

An EEOC
Administrative Judge ultimately found the Agency liable for sex based harassment and awarded
remedies which were augmented on appeal. See v. United States Postal Serv., EEOC
Appeal No. 0720120015 (July 12, 2012).
On September 14, 2009, Complainant filed another EEO complaint alleging that the Agency
retaliated against her when:

1 Their opposition included staging a walk off, during which the mail was not delivered. The
removals were rescinded via the grievance process.
0120113320

2
1. On or about May 19, 2009, management threatened to write her up for mis-
deliveries;
2. On July 1, 2009, she was told not to discuss back pay issues;
3. On or about July 28, 2009, she was given a Pre-Disciplinary Interview claiming she
was talking about inappropriate topics including her EEO complaint, back pay, and
houses;
4. On or about August 27, 2009, management denied her request for sick leave;
5. On August 29, 2009, an individual named in her previous EEO complaint came to
her office and announced he would be filling in for her Postmaster during her
upcoming scheduled absence; and
6. On or about August 31, 2009, she was scheduled to work even though she had
approved leave.

The Agency dismissed all but claims (4) and (6). At the conclusion of the investigation of
claims (4) and (6), 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. Both parties moved for summary judgment. The AJ
denied Complainant’s motion and entered a decision in the Agency’s favor on April 8, 2011.

In her decision, the AJ found that the dismissals were appropriate because Complainant failed
to show how she was harmed by the incidents. With regard to the denied sick leave in claim
(4), the AJ found that management had approved hundreds of hours of leave for Complainant
and that on this occasion, the Postmaster had adopted a practice of having no more than two
carriers and one clerk on leave on any given day. As two carriers were already on leave for
the day in question, Complainant’s request was denied.2

With regard to being scheduled for
work on August 31, 2009, even though she had approved leave, the AJ found that the
Postmaster had simply made a scheduling error, and Complainant did not actually have to
work that day. The AJ found no evidence to support the conclusion that retaliation motivated
the incidents herein. 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.
ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.

2 Once the union informed the Postmaster that such a policy was in conflict with the collective
bargaining agreement, she immediately abandoned it.
0120113320

3
Initially we find that the Agency’s dismissals and the AJ’s affirmation of the dismissals were in
error because the incidents, taken together, are sufficient to state a claim of retaliatory
harassment. However, we find the error harmless because a reasonable person, in
Complainant’s position, would not have found the incidents severe or pervasive enough to
create a hostile work environment. In reaching this conclusion, we take into consideration
both the prior sex based harassment and the removal actions. We find that all but one of the
incidents alleged amount to Complainant’s frustration with the Postmaster’s legitimate exercise
of her authority and that the lone incident involving the individual and his announcement, to
the extent that it happened, was simply not severe or pervasive enough to render the work
environment abusive.

With regard to the denial of sick leave and the error in scheduling, there is simply no evidence
from which a reasonable fact finder could conclude that the Postmaster was motivated by
retaliatory animus. Complainant’s claim that her substitute carrier would have been grateful
for the hours or that the limits on leave policy violated the collective bargaining agreement are
not evidence of retaliation. For these reasons, we discern no basis to disturb the AJ’s
conclusion, and we AFFIRM the Agency’s final order.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

3 We note that Complainant subsequently filed another complaint alleging retaliation with
regard to the denial of leave requests, and the Commission affirmed the AJ’s conclusion that
Complainant did not prove reprisal. See Brunjes v. United States Postal Serv., EEOC Appeal
No. 0120122176 (July 12, 2013).
(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,

0120113320

4
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
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

September 12, 2013
Date