Corazon P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 23, 2018

0120171359 (E.E.O.C. Nov. 23, 2018)

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

Corazon P.,1
Complainant,

v.

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

Appeal No. 0120171359
Hearing No. 470-2016-00032X
Agency Nos. 4C-400-0052-15/4C-400-0010-16

DECISION

On February 28, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 21, 2017, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant established that she was subjected to discrimination and harassment based
on sex (female), age (56), disability (knee) and retaliation (opposition activity) when: (1) on July
2, 3, and 4, 2015, she was forced to use leave, and she was denied the use of leave for upcoming
dates in September and November 2015; (2) in October 2013, she was forced to transfer to another
office and was deceived by the Manager, Post Office Operations, S2, about becoming a full--time
employee when she transferred; (3) in January 2013, January 2015, and on May 19, 2015, her work
hours were reduced; (4) in May 2013, she was subjected to vulgar language by the Postmaster; and
(5) on July 24 and 25, 2015, she was threatened when she called in sick; and she was discriminated

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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against based on sex (female), age (56), disability (Nausea Always, Hypothyroidism, Major
Recurrent Depression, HTN, Anxiety, Gerd, OA, Fibromyalgia, Post Total Knee Replacement,
and Hernia Repair), and retaliation (prior EEO activity) when: (6) since November 5, 2015, and
continuing, she has not been compensated for extended medical leave; (7) since November 16,
2015 and continuing, she has received less work hours than a co-worker; (8) since January 12,
2016, her Postmaster has given preferred work assignments and hours to her co-worker; including
sending Complainant to work in other offices; and (9) on a date not specified, she was denied
leave.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible
(PTF) Sales and Services Associate at the Agency’s Henryville Post Office facility in Henryville,
Indiana. Complainant filed two EEO complaints, which were consolidated, alleging that the
Agency discriminated against her on the bases of sex (female), disability (physical), age (56), and
reprisal for prior protected EEO activity as set forth above under the Issues Presented.

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 when, on November 29, 2016, she voluntarily requested that
the AJ dismiss the hearing. Consequently, 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.

Claim 1:

Complainant alleged that her supervisors (S1 and S2) would only allow her to use leave in 8 hour
increments; and that she was not allowed to use a day or two of vacation time in conjunction with
holidays as she had done in the past. She stated that she was informed that the rest of her vacation
would not be allowed on holiday weeks because others wanted that time and the vacation schedule
had been done incorrectly. Complainant stated that she was following past practice by filling out
a vacation calendar the first part of every year and she was never told she could not take prime
choices if it was not her turn to choose. According to Complainant, she was also advised to use
her leave at the rate of 8 hours per day because it took 8-clerk hours to replace her. She stated that
several subsequent leave requests were denied; and that she did not receive pay for donated leave
over a two-month period.

Management explained that, consistent with existing policy, Complainant was told that when using
Programmed Annual Leave (PAL), employees needed to use continuous leave which would
require 8 hours because if the employee did not take the entire day, they may be called in to work
if needed, thus nullifying the leave request.

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Management added that Complainant was picking and choosing the days she was using PAL,
turning in a leave slip for 2 weeks but only taking a few days off. They stated that, for the most
part, Complainant’s leave requests were accommodated but fairness to her coworkers required that
they were not always accommodated.

Claim 2:

Complainant alleged that S2 forced her to transfer to the Henryville facility by stating that she had
to be located at that office to take advantage of an upcoming full-time opportunity there; and that
he would grant approval if she requested that position but that information turned out to be untrue.
Complainant stated that S2 later maintained that he never told her the position would be full-time,
and that he told her during their meeting in May 2015, that he would never have a full-time position
in a 6-route office and that he would not approve a Non-Traditional Full Time (NTFT) position.
She commented that S2 should have been more forthcoming, but that he wanted her out of the
Charlestown office because she told about the vulgar language being used by the Postmaster at
Charlestown.

S2 stated that Complainant told him they were going to make a full-time position in Henryville.
He replied that it was news to him, but advised Complainant that if it was true, she could not get
that job unless she was assigned to that office as a clerk because if a full-time position became
available it would be filled by someone in that office. S2 maintained that Complainant
subsequently asked if he would allow her to transfer to Henryville, and he again told her he had
no information that they were going to make a regular position, and she responded that she could
not stay in Charlestown. S2 stated that he never told Complainant that her part-time position would
be made full-time at the Henryville Post Office. He reasserted that he only told her that if a regular
position became available that the only people who could get the job would be someone who was
in that office. S2 commented that it was Complainant’s decision to make the request to transfer
and she was very happy to be going to Henryville.

Claim 3:

Complainant alleged that her work hours were reduced after she transferred, and she believed that
her supervisors were responsible for this. She stated that a coworker had been assigned more
hours; and that when she returned from medical leave, she found that another Clerk had been hired
in Henryville. She maintained that, on May 19, 2015, S2 came to the office and cut the work hours,
and her hours have continued at a reduced rate. Complainant stated that she was informed that all
offices had a new clerk but she did not believe it; and that S2 reduced hours in her office for the
first time in two years. Complainant also alleged that her Postmaster gave preferred work
assignments and hours to her coworker; and sent Complainant to work in other offices. She
explained that preferred work assignments and hours are working more mornings and less split
shifts.

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Management stated that, consistent with Agency policy requiring efficiency and avoiding
monetary penalties that would result from working beyond the allowed number of hours, schedule
changes were made due to more clerk hours being used at Henryville than were needed based on
reduced duties for the new Postmaster at that location. Complainant, according to the Agency,
was informed of the changes; that all clerks worked under the new schedule; and that a new clerk
was hired because Complainant was out of work for surgery.

Claim 4:

Complainant maintained that the Postmaster of the Charlestown Post Office subjected her to vulgar
language including using the “F” word. She alleged that this word was continuously used despite
there being older, Christian women there. Complainant asserted that her sex was a factor because
the Postmaster’s actions were always sexist; and that her age was a factor because older women
tend not to say anything.

Management explained that the Charlestown Post Office had been investigated after
Complainant’s charges that the Postmaster was cursing, yelling, and not treating all employees the
same. There were other employees, however, who indicated that they never heard the Postmaster
curse or use profanity; and that no evidence was found to substantiate Complainant’s charges.

Claim 5:

Complainant alleged that S1 threatened her when she called in sick on two consecutive days when
she was unable to leave home due to a flare up in her medical conditions. Complainant alleged
that when she called, S1 stated that she had plans with her grandchildren and that Complainant’s
coworker needed to go home; and that if Complainant did not come in, she was going to contact
S2 and to let him know. She affirmed that she was paid sick leave for the dates in question but the
threat worsened her anxiety. Complainant maintained that her sex, age, medical condition, and her
prior EEO activity were factors because she was treated differently than her coworker.

S1 stated that she had explained to Complainant that she would have to contact S2 about the
situation at the office if Complainant would be out another day because the other employees were
also out, and S1 had to watch her grandchildren that next day. She stated that she had explained
to Complainant that her statement was not a threat but merely an “exclamation” because she did
not know what else to do other than call S2 for assistance as she could not close one of the post
offices without approval from him.2

Claim 6:

Complainant stated that the entire time she was off that she did not receive pay for donated leave.
She maintained that when she called about this issue, S1 stated that she was too busy.

2 S1 indicated that she is responsible for two offices, Memphis and Henryville, and that she was
the only employee who reported to work that morning.
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Complainant commented that management should have taken the time to make sure that their
employees were paid. Complainant indicated that she is now being compensated for extended
medical leave that was finally turned in after a January 12, 2016, meeting with the EEO Mediator.
She stated that her leave was finally corrected and finished in pay period 3 of 2016.

S1 explained that Complainant was on Injured on Duty (IOD) status and on Continuation of Pay
(COP) leave from November 23, 2015, through December 2, 2015, and then returned to work in a
limited duty status. She indicated that Complainant was not compensated for all the days that she
was on leave because she had used all her annual leave and sick leave. S1 noted that as a result she
had to enter Leave Without Pay (LWOP) into the timekeeping system for Complainant.

Regarding why Complainant did not receive pay for donated leave, S1 indicated that she did not
receive any forms until November 3, 2015, when she received a priority envelope from the
Postmaster of a donor employee. The Postmaster had enclosed a handwritten letter stating that he
had sent the form off but it was returned due to the lack of a Leave Sharing Program (LSP) number.
According to S1, the LSP number was not generated because Complainant had not submitted a
Form 3970-D (Request to Receive Donated Leave). S1 stated that she had previously asked
Complainant about the need for the form, but Complainant did not think it was necessary because
the donor employee had already agreed to provide her with leave. Subsequently, the proper
paperwork was submitted; however, S1 and Complainant were told that the form was not processed
until December 10, 2005; and, therefore was not approved in a timely manner.

Claim 7:

Complainant testified that her work hours were closer to those of her co-worker, but that she still
worked more afternoons. She maintained that the Postmaster worked 2 hours in the morning
performing clerk-work which leaves Complainant with a total of 25 hours of work a week.
Complainant indicted that she has not been told why she was being assigned less hours.

S1 acknowledged that Complainant received less work hours than her coworker because
Complainant had been off work due to her injury on November 19, 2015; and that when she was
released, she offered Complainant a modified assignment (limited duty) which Complainant
accepted on December 2, 2015. S1 stated that she did what she could to provide work to
Complainant while she was on limited duty. S1 also indicated that Complainant took annual leave
during pay period 02-02-2016, and sick leave during pay period 02-01-2016, after she returned to
full duty.

Claim 8

Complainant indicated that preferred work assignments and hours are working more mornings and
less split shifts. She noted that the last time she was assigned to work at another Post Office was
on January 19, 2016, and before that was a week in November; and that S1 was the person who
assigned her to work at other offices.
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Complainant maintained that she was not provided a reason for the work assignments and hours
and that S1 did not discuss the schedule, but only posted it on the board.

S1 asserted that she did not give one employee better hours than another. She explained that she
used a blueprint schedule and stuck to it as much as possible, although it sometimes needed to be
adjusted due to other offices needing help. She claimed that prior to her appointment to the
Henryville Postmaster position, that Complainant had been trained to work at Remotely Managed
Post Offices in Memphis and Austin. S1 explained that Complainant worked at the Memphis Post
Office, on January 19, 2016, and January 20, 2016, because a Memphis employee took a leave of
absence. She also contacted the supervisor at the Charlestown Post Office to provide Complainant
more work hours; but the supervisor told her that Complainant had “gotten into it” with a Clerk in
front of a customer. S1 noted that these types of instances could affect the total hours received by
Complainant. S1 also indicated that she has no control over requests or non-requests for employees
made by other offices. She claimed that no preferred work assignments or hours were given. S1
commented that when another employee raised the issue of unfair distribution of hours, she tried
to evenly distribute them and that in doing so, Complainant has repeatedly talked bad to her,
belittled her, and purposely upset operations.

Claim 9:

Complainant maintained that she was denied leave in February. She explained that the day she
turned in her leave slip, the Postmaster told her that she probably could not have that day because
there was nobody to cover for her; and that the Postmaster never tried to find a replacement Clerk.

S1 stated that she has no record of a denied leave request for Complainant. She recalled that once
Complainant talked about taking off one day after a holiday; and S1 told her that it would possibly
put her in a bind because she had been short of carriers and did not know if she, S1, would need to
run the route herself. S1 emphasized, however, that no leave has been denied for Complainant.

CONTENTIONS ON APPEAL

Neither Complainant nor the Agency submitted a brief on appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To meet her burden of proving that the Agency’s actions were pretextual, Complainant needs to
demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in
the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No.
0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir.
2014).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
age, sex, disability and reprisal; we find that the Agency articulated legitimate, nondiscriminatory
reasons for claims 1, 2, 3, 5, 6, 7, 8 and 9. We also find no persuasive evidence of pretext or
discriminatory animus. Regarding Complainant’s hostile work environment claim with respect to
claims 1, 2, 3, 5, 6, 7, 8 and 9, we find that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must
fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(Sept. 21, 2000).

With respect to claim 4, we do not find that Complainant established that she was subjected to
unlawful harassment with respect to this matter. Assuming, arguendo, that this claim occurred
exactly as indicated by Complainant, we do not find that it was severe or pervasive enough to rise
to the level of a hostile work environment, nor is there any evidence that the Postmaster’s vulgar
language took place because of Complainant’s age, sex, disability and reprisal. Although we do
not condone such language, the anti-discrimination statutes are not civility codes. Rather, they
forbid “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance
of the evidence in the record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

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

November 23, 2018
Date