Deidra D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 7, 2017

0120151145 (E.E.O.C. Jul. 7, 2017)

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

Deidra D.,1
Complainant,

v.

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

Appeal No. 0120151145

Hearing No. 410-2014-00375X

Agency No. 4K-300-0234-13

DECISION

The Commission accepts Complainant’s appeal from the December 24, 2014 final Agency
decision (FAD) 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’s review is de novo. For the following
reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate at the Agency’s Post Office in Jonesboro, Georgia. In July 2013, the Postmaster
observed that Complainant had several performance deficiencies including misdelivering mail,
failing to accept accountable mail, falsely scanning packages as though she attempted to deliver
them when she had not, and leaving mail in her vehicle that should have been brought inside for
processing. The Postmaster held investigative interviews with Complainant on July 16, 2013
and July 23, 2013, and determined that Complainant failed to give acceptable explanations for
her actions. Complainant had previously been issued suspensions (one reduced to a Letter of
Warning) for similar conduct. As a result, on July 30, 2013, the Postmaster informed

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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Complainant that she was removing Complainant from the schedule. Complainant claims that
during this meeting, the Postmaster refused to give her a reason for her removal from the
schedule and refused her request for a grievance form. On August 12, 2013, the Postmaster
issued Complainant a Notice of Removal for unsatisfactory work performance and delay and/or
improper delivery of mail. The Notice was later reduced to a 14-Day Suspension on November
6, 2013.

In October 2013, during attempts to resolve the matter, Complainant requested a transfer to
either the Agency’s Old National, Fayetteville, or Riverdale facilities. Complainant claims that
the Postmaster blackballed her and would not allow her to transfer even though all the other
facilities needed help.

On November 20, 2013, Complainant’s supervisor (S1) discovered that Complainant failed to
follow instructions which resulted in delayed mail. S1 noted that management discovered during
a back door check that there were bundles of properly addressed, unidentified first class mail that
had not been delivered. A review of Complainant’s undeliverable bulk mail (UBBM) revealed
that there was “electronic service request” mail in the UBBM along with first class mail. Thus,
Complainant had brought back first class mail, certified mail, and parcels that had not been
attempted. Based on this conduct, S1 placed Complainant on Emergency Placement in Off-Duty
Status.

On November 22, 2013, S1 held an investigative interview with Complainant. During the
interview, S1 raised numerous instances of unacceptable performance with Complainant
including several misdeliveries on November 16, 2013; misdirected mail on November 18, 2013;
and non-delivery of first class mail, improperly placed first class mail, improperly scanned
accountable items, and an inappropriate comment to the Postmaster on November 20, 2013.
Complainant failed to provide an acceptable explanation for her conduct. As a result, on January
6, 2013, S1 issued Complainant a Notice of Removal.

On October 22, 2013 (and twice amended), Complainant filed a formal complaint alleging that
the Agency discriminated against her and subjected her to a hostile work environment in reprisal
for prior protected EEO activity when:

1. On July 30, 2013, she was removed from the work schedule;

2. She was issued a Notice of Removal dated August 12, 2013;

3. On unspecified date(s) she was denied a transfer to three different post offices;

4. On November 30, 2013, she was placed on Emergency Placement in an off-duty
non-pay status; and subsequently on November 22, 2013 she was subjected to an
investigative interview; and

5. On or around January 9, 2014, she received a Notice of Removal.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) 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. Consequently, the Agency issued a
FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that management
had articulated legitimate, non-retaliatory reasons for its actions. Specifically, as to claim (1),
the Postmaster stated that Complainant was removed from the work schedule due to her poor
performance which included misdelivery of mail, falsely scanning packages as attempted
deliveries, and not attempting delivery of accountable mail. The Postmaster added that
Complainant was removed from the schedule and eventually disciplined to protect the mail and
the interests of the Postal Service. With respect to claim (2), the Postmaster affirmed that
Complainant was issued the August 12, 2013 Notice of Removal due to unsatisfactory work
performance based on the above-mentioned conduct. The Notice of Removal was later reduced
to a 14-Day Suspension.

Regarding claim (3), the Postmaster confirmed that she made calls to the Old National,
Riverdale, and Fayetteville Post Offices during a mediation session to discuss possibly
reassigning Complainant. The Postmaster stressed that that each office refused to accept
Complainant and that she played no role in denying Complainant a transfer. With respect to
claim (4), S1 affirmed that she placed Complainant on Emergency Placement in Off-Duty Status
because Complainant had placed first class mail in a UBBM tub, and that she had returned to the
Post Office with undelivered certified mail, first class mail, and parcels. Additionally, S1 stated
that Complainant had made a threatening remark to the Postmaster. The Postmaster added that
Complainant’s performance along with customer complaints and supervisory observations led to
her being placed in emergency status and given an investigative interview. Finally, as to claim
(5), S1 affirmed that Complainant was issued the Notice of Removal based upon her conduct and
prior disciplinary history. The Postmaster confirmed that she was the concurring official on the
removal and that it was warranted based upon Complainant’s conduct.

The Agency determined that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to reprisal or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she has established a prima facie case of reprisal and that
the Agency has not and cannot provide legitimate business reasons for its actions. Complainant
argues that she was fully capable of performing her duties adequately and that any difficulties
encountered were the result of S1’s and the Postmaster’s failure as managers. Complainant
claims that the Postmaster damaged her reputation and then stood in the way of her transferring
out of spite. Further, Complainant alleges that the Postmaster and S1 concocted evidence as
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reasons for their actions against her. Finally, Complainant presented evidence showing that she
has been returned to work without back pay and that the January 6, 2014 Notice of Removal
would be reduced to a long-term suspension. Accordingly, Complainant requests that the
Commission reverse the FAD.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) 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 her
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).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her prior protected EEO activity. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As Complainant to withdrew her hearing request, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. Here, Complainant
asserted that based on her prior protected EEO activity, she was subjected to a hostile work
environment based on several incidents where Agency officials took actions that seemed adverse
or disruptive to her. The Commission concludes that the conduct alleged was insufficiently
severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that retaliatory animus played a
role in any of the Agency's actions. The record reflects that the alleged incidents were more
likely the result of routine supervision, managerial discipline, and general workplace disputes
and tribulations. For example, as to claim (1), the Postmaster stated that she removed
Complainant from the schedule after Complainant had numerous performance deficiencies
including misdelivered mail, failing to attempt to deliver accountable mail, falsely scanning
packages as though she attempted to deliver then when she did not, and failing to bring in mail
for processing from her vehicle. ROI, at 113. The Postmaster noted that Complainant had
previously been disciplined for similar conduct and she removed Complainant from the schedule
to protect the mail. Id. The Postmaster added that Complainant could not specify which form
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that she needed during their meeting; therefore, she could not provide her a form. Id. With
respect to claim (2), the Postmaster affirmed that she issued the August 12, 2013 Notice of
Removal for Complainant’s unsatisfactory work performance and delay/improper delivery of
mail based on the above-mentioned conduct. ROI, at 114, 153. The Notice of Removal was
later reduced to a 14-Day Suspension. Id. at 158.

Regarding claim (3), the Postmaster explained that she contacted the Old National, Riverdale,
and Fayetteville stations during their mediation session in an effort to resolve the situation. ROI,
at 115. The Postmaster denied blocking or denying a transfer to one of those stations; rather,
each station refused to accept a transfer. Id. Finally, as to claims (4) and (5), S1 stated that on
November 20, 2013, Complainant had first class mail in her UBBM, brought back certified mail
and parcels that had not been attempted, and unidentified first class mail that was not delivered.
ROI, at 126. Based on her conduct and violation of numerous Agency rules and regulations, S1
placed Complainant on Emergency Placement in Off-Duty Status. Id. at 126, 161. S1 held an
investigative interview with Complainant on November 22, 2013, regarding her numerous
performance deficiencies including instances of misdelivered mail, failure to attempt accountable
mail at a customer’s door, misdirecting first class mail, and non-delivery of first class mail. Id.
at 166. Complainant failed to provide an acceptable explanation for her infractions. Id. at 171-
72. As a result, S1 issued Complainant a Notice of Removal on January 6, 2014. Id.

Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
articulated reasons were a pretext for unlawful reprisal. As a result, the Commission finds that
Complainant was not subjected to reprisal or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.
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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. 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.

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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

July 7, 2017
Date