Cortney E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 1, 2016

0120143169 (E.E.O.C. Feb. 1, 2016)

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

Cortney E.,1
Complainant,

v.

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

Appeal No. 0120143169

Agency No. 1J-482-0005-14

DECISION

Complainant filed an appeal from the Agency’s August 11, 2014 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Decision, finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail
Processing Clerk at the Agency’s Michigan Metroplex Processing and Distribution Center
facility in Pontiac, Michigan. On February 6, 2014, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the basis of race (Asian) when:

1. On or around October 4, 2013, Complainant received a Notice of Removal for
Conduct Unbecoming a Postal Employee, effective November 8, 2013.

2. On or around January 1, 2014, Complainant was removed from the building by
management.

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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3. Complainant was issued a Notice of Removal dated February 14, 2014, for
Conduct Unbecoming a Postal Employee.

4. On or around April 9, 2014, Complainant was removed from the building.

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). 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).

In its Decision, the Agency found that Complainant failed to establish a prima facie case of
race discrimination because Complainant failed to identify any other employees, not in her
protected groups, who were treated better than she was treated under the same or similar
circumstances. The Agency considered the various employees Complainant identified in
response to the EEO investigator’s questions. The identified employees were either in
different jobs (mail handlers, a maintenance mechanic, and an electronic technician) or had no
record of conduct similar to the conduct described in the Notices of Removal that Complainant
received. The Agency found that two other employees under the supervision of S1,
Complainant’s supervisor, one Black and one a White employee, also received Notices of
Removal, similar to the Notices Complainant received, for conduct unbecoming a Postal
Service Employee. The Agency found that this evidence indicated that in addition to failing to
establish a prima facie case of race discrimination, the Agency’s evidence supported the
Agency’s position that Complainant’s race played no role in S1’s reasons for issuing the
discipline to Complainant that she did.

The Agency assumed for the sake of argument only, that Complainant had met the elements
necessary for a prima facie case of race discrimination and continued its analysis of
Complainant’s complaint. The Agency found that S1 articulated legitimate, nondiscriminatory
reasons for its actions that Complainant did not show were a pretext to mask discrimination.
Specifically, the Agency found that the manager of Tour 3, S2, reviewed the evidence obtained
during the investigative interviews conducted to address complaints the Agency had received
about Complainant’s conduct. S2 noted that from the statements obtained in a second
investigative interview, some employees would not work with Complainant because of her
actions that led to her emergency placement off-duty.2

2 The record shows that Complainant was returned to work as a result of a settlement achieved
through the Agency’s grievance process and the discipline was reduced to a suspension for the
length of time that Complainant was off-duty.
S2 found Complainant’s conduct
violated several Agency conduct policies and that Complainant’s behavior was unacceptable
under the Agency’s zero tolerance policy regarding workplace violence. S3, the Michigan
Metroplex plant manager, agreed with the actions taken in S2’s October 4, 2013 Notice of
Removal for the reasons described in the Notice by S2 after S2’s investigation. The Agency
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found that S2 articulated legitimate, nondiscriminatory reasons for issuing the Notice of
Removal to Complainant on October 4, 2013, that Complainant did not show were a pretext.

With respect to Complainant’s claim of harassment when she was removed from her work
station January 1, 2014, the Agency found that S4 was responding to the complaints of E1,
Complainant’s coworker, who accused Complainant of harassment. S4 stated that while
removing Complainant from the workplace, he asked for Complainant’s badge and escorted
her from the building. S4 denied that Complainant’s race played any role in S4’s actions
(based upon Complainant’s supervisor’s decision) to remove Complainant from the workplace.

Regarding Complainant’s claim that she was issued another Notice of Removal for Conduct
Unbecoming a Postal Employee in February 2014, the Agency considered the explanation
provided by S5, the Acting Manager of Distribution Operations. S5 questioned Complainant
during two investigative interviews about the repeated complaints made against her by
coworkers and the placements off-duty that occurred between November 2013 and February
2014. S5 found that Complainant’s documented actions violated identified sections of the
Agency’s policies. The Agency considered that S5 asked Complainant for an explanation of her
coworkers’ complaints and that Complainant stated her coworkers did not like her, and that
they were lying about her. The Agency found that S5’s decision to issue the Notice of
Removal and Complainant’s subsequent removal in April 2014 (after her grievance was
denied) was based upon the statements of Complainant’s coworkers who alleged that
Complainant stared at them, made monkey sounds, and called her coworkers derogatory names
including monkey and ugly gorilla. The Agency found no evidence that Complainant’s race
played any role in S5’s decision to issue the Notice.

The Agency found that the decision to remove Complainant from the workplace was made
after the denial of Complainant’s grievance concerning the Notice of Removal. The Agency
found that as she was being removed from the workplace in April 2014, Complainant became
very upset, as documented by S5. S5 reported that Complainant continued to argue that her
coworkers were lying about her. S5 stated that Complainant’s actions violated the Agency’s
Zero Tolerance policy and that Complainant was placed on leave without pay (LWOP) pending
her return to work. The Agency found no evidence that Complainant’s race motivated her
removal on April 10, 2014.

The Agency’s Final Decision concluded that Complainant failed to prove that the Agency’s
explanations were a pretext to mask discrimination, and further failed to prove that the Agency
subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

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
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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”).

To establish a claim of harassment a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (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 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or
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 at 6 (Mar. 8, 1994).

The prima facie inquiry may be dispensed with in this case, however, since 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); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). 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); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

In the instant case, we find the evidence supports the Agency’s Final Decision. Complainant
repeatedly states that she has done nothing wrong, denies all of the allegations brought by her
coworkers, and insists that her coworkers are lying to the investigators when they answer
questions about the actions they find offensive. We note that in the documents describing
conduct in violation of Agency’s conduct policies, Complainant is accused of a wide variety of
misconduct including pulling her clothing off in front of other employees, staring at
coworkers, calling them derogatory names, and also failing to report mechanical problems. In
response to questions about her coworker statements, Complainant answers with rhetorical
questions such as “why would I do that?” and responds to other charges that she is aware that
“one cannot do that at work,” as well as affirming that she loves her job and is a good worker.
We find that Complainant did not present evidence to show that the Agency’s reasons for its
actions were untrue, unbelievable or a pretext to mask discrimination. We find, as did the
Agency, no evidence that Complainant’s race entered into the decision making process of any
of the numerous Agency officials identified in her complaint.
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CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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 (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, Director
Office of Federal Operations

February 1, 2016
Date