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

Equal Employment Opportunity Commission

Dec 18, 2019

2019005280 (E.E.O.C. Dec. 18, 2019)

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

Delphia F.,1
Complainant,

v.

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

Appeal No. 2019005280

Agency No. 4J-481-0206-18

DECISION

On July 10, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 24, 2019 final decision concerning an 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.

BACKGROUND

During the period at issue, Complainant worked as a Lead Sales & Service Associate at the
Agency’s Mount Clemens, Michigan Post Office.

On December 13, 2018, Complainant filed the instant formal complaint. Complainant claimed
that since May 31, 2018, she was subjected to harassment/a hostile work environment on the
bases of race (African-American), color (black), and in reprisal for prior EEO activity when:

1. on February 5, 2018, March 19, 2018, and September 13, 2018, she was called into
the office for minor matters;

2. on September 13, 2018, management made her follow rules which management did
not make her co-workers follow;

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. in May 2018, she was made to perform two job assignments;

4. on September 7, 2018, she was issued a 7-day suspension;

5. on September 18, 2018, the supervisor was rude to her in front of a customer; and

6. on October 2, 2018, Complainant was issued a 14-day suspension.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on June
24, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted based on a prohibited reason. See St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

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Regarding claim 1, Complainant asserted that on February 5, 2018, March 19, 2018, and
September 13, 2018, she was called into the office for minor matters.

The Supervisor Customer Services (Caucasian, white, no prior protected activity) stated that
during the relevant period, she was Complainant’s supervisor. She stated that in regard to the
February 5, 2018 incident, she received a call from the opening clerk at the Clinton Township
Postal Store stating that he picked up a priority mail package “that was left from the night before
and was stabbed with something that was inside the package but protruding.”2 The supervisor
stated that the opening clerk was concerned because the package had a “Hazmat” sticker on it,
which usually indicated there was a hazardous chemical inside the package. Following an
investigation of the package, the supervisor learned that package was taken in by Complainant
the previous day.

The supervisor stated that she asked Complainant to discuss the subject package. Complainant
stated that when she accepted the package, there was nothing protruding out of it. However,
when the collection carrier came and picked it up “whatever inside was sharp enough to poke
through the box and the collection carrier refused to take the package.” The supervisor stated
that since Complainant was not the only Lead Associate at the Clinton Township Postal Store,
“which is a standalone unit with no supervisors in the building… it was her responsibility to
ensure that all mail was collected by the collection carrier from the main.”

Further, the supervisor asked Complainant if she attempted to call the night supervisor at the
main facility to instruct the carrier to take the package and Complainant responded that she had
not done so, because she was “off the clock.” She noted that Complainant should not have been
off the clock before the carrier was done retrieving all the mail. As a result, the supervisor
conducted a service talk with all retail clerks on instructions to handle this situation. She also
stated that a named Caucasian employee “was given training on safe handling of packages such
as this.”

With respect to the March 19, 2018 incident, Complainant claimed she was called into the office
concerning the box section not being scanned. Complainant claimed further that the box section
relates to an assigned bid, the supervisor forgot to schedule the employee on that assignment
when she gave the box clerk the day off. The supervisor stated “at this time I am unable to
account for the allegations of this day, as the normal PO Box clerk was scheduled on this day
and work 4.6 hours in his assignment on that day.”

With respect to the September 13, 2018 incident, the supervisor stated that while Complainant is
a Lead Clerk at the standalone retail unit, it was her responsibility to run the facility in the
absence of a supervisor. The supervisor stated that “in months preceding this event there [were]
situations where I needed the complainant to complete a task immediately, such as fix the self-
service kiosk at the store or I needed to convey information from the main to the store.

2 The record reflects that while Complainant claimed that the first incident occurred on February
6, 2018, the supervisor clarified that the incident actually occurred on February 5, 2018.
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[Complainant] states that she is unable to answer the phone at the retail store because it will
interfere with customer service. I have given her many solutions - options for better
communication between the store and the main…Complainant claims that the brand new
cordless phone does not work even though I have had no issues with it since it was installed.
The complainant has gone so far as to tell other employees at the store that they are not to answer
the phone.”

The supervisor stated that on September 13, 2018, Complainant was given instructions that she
was required “to take 3 minutes every 2 hours to check her emails for any emails from either a
supervisor at the main or the Postmaster. No one else is given this requirement because
[Complainant] is the Lead Clerk responsible for the day to day operation of the store.”

In addition, the supervisor stated that as a result of an audit in June 2018 at the Clinton Township
Postal Store, there were many deficiencies. The supervisor stated that one of deficiencies was
the deposit bag not being scanned upon departing the postal store. The supervisor stated “for the
better of the Postal Service, I instructed [Complainant] that all registers must be scanned at the
carrier as prepaid acceptance when they are picked up and this included the register bag.
[Complainant] was not receptive to this change and refused to follow these instructions…finally
on September 13, 2018 she was given instructions that she was to make copies of the register
manifest and the deposit and send them to me daily so that I could verify that they were being
scanned as I instructed.”

Moreover, the supervisor stated that Complainant’s race, color and prior protected activity were
not factors in any of these three incidents and “the only factor in these incidents was the
complainant’s blatant disregard for following the instructions of her immediate supervisor.”

Regarding claim 2, Complainant alleged that on September 13, 2018, management made her
follow rules which they did not make her co-workers follow.

The supervisor explained that Complainant was made to follow rules because she is the Lead
Clerk at a standalone retail unit “who refuses to answer the phone or have another clerk answer
the phone when the main post office is calling. Communication between the main post office
and the Clinton Township Postal Store is imperative to daily operation and the complainant
refused all other suggestions of open communication between the two buildings.”

Furthermore, the supervisor stated that the two identified employees in which Complainant
claimed were not directed to follow rules worked in different facilities and responsibilities than
Complainant.

Regarding claim 3, Complainant alleged that on in May 2018, she was made to perform two job
assignments.

The supervisor noted that Complainant has regularly signed the 12 hour/NS overtime desired list.
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The supervisor explained “by signing this list, [Complainant volunteered] to come in on overtime
and work on multiple assignments. The complainant was scheduled overtime prior to her shift
the deliver the Post Office Box Mail at the Clinton Township Postal Store. This is an almost
daily occurrence where the complainant would be scheduled prior to her shift to complete mail
processing duties on overtime.”

Regarding claim 4, Complainant alleged that on September 7, 2018, she was issued a 7-day
suspension.

The supervisor stated that while Complainant was not issued a 7-day suspension on September 7,
2018, she was issued a 7-day suspension on September 10, 2018 for multiple counts of
Discharge of Duties and Obedience to Orders. Specifically, the supervisor stated that on
September 5, 2018, she gave each employee “Perfect Retail Transaction” training as required by
the district but Complainant “blatantly refused to follow any of the requirements of the district
policy. She was observed the same day in a retail transaction with a customer and did not follow
the instructions that she was given previously that day knowing I was there observing all the
clerks. She then turned to the customer and stated ‘since I’m being watched I am going to circle
the survey but any other time I wouldn’t do it.’” The supervisor noted that the customer later
contacted her complaining about Complainant and she asked the customer to send her the
receipt. After a review of the customer’s receipt, the supervisor verified that Complainant had
serviced her and failed to circle the survey invitation on her receipt.

In addition, the supervisor stated that on the same day, September 7, 2018, Complainant failed to
follow postal policy regarding requesting unscheduled leave when she called and notified a mail
processing clerk that she was not coming in for her scheduled overtime.

The record contains a copy of Complainant’s 7-day suspension. Therein, the supervisor placed
Complainant on notice that she would be suspended for 7 days for Unsatisfactory
Performance/Failure to Follow Instructions/Conduct Unbecoming. She also stated “this action is
taken to impress on you that you must correct your work deficiencies and demonstrate adherence
to postal regulations. Failure to meet the above stated or other legitimate work expectations may
result in further discipline, up to and including removal from the Postal Service.”

Moreover, the supervisor determined that Complainant was in violation of the following sections
of the Employee and Labor Relations Manual (ELM): 665.13 “Discharge of Duties; 665.15
“Obedience to Orders,” and 665.16 “Behavior and Personal Habits.”

The Postmaster (African-American, brown, no prior protected activity) stated that he was the
“higher-level reviewing authority” concerning Complainant’s 7-Day suspension. The Postmaster
stated that he and the supervisor “reviewed and discussed the Complainant’s actions, words, pre-
disciplinary interview results and work performance observations.” Thereafter, the Postmaster
stated that he agreed with the supervisor that Complainant should be suspended for 7 days based
because her behavior was unacceptable.

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Regarding claim 5, Complainant alleged that on September 18, 2018, the supervisor was rude to
her in front of a customer.

The supervisor explained that on September 18, 2018, she went to the front counter to give
Complainant some information regarding Self-Service Kiosk that was installed. She stated at
that time, there were no customers at the retail counter. However, there was one customer in the
lobby filling out a change of address form and one customer looking at mail packages. The
supervisor stated when she approached Complainant, Complainant stated that she was helping
the customer with the change of address even though the customer “was about 7 feet across the
lobby. I then stood there waiting for the customer to hand [Complainant] the change of address.
Once the customer was done, I then gave [Complainant] the information that she requested.
There was at no time any interaction in front of the customer.”

Regarding claim 6, Complainant asserted that on October 2, 2018, Complainant was issued a 14-
day suspension.

The supervisor stated that on October 2, 2018, Complainant was issued a 14-Day Suspension for
Failure to Follow Instructions/Conduct Unbecoming. The supervisor stated that on September
17, 2018, Complainant was instructed to fix the self-service kiosk at the Clinton Township Postal
Store and was also instructed “to ensure the register manifest that was being faxed to the main
was legible to ensure I could verify scans. She failed to fax over the manifest on 2 different
occasions and continued to fax over illegible manifest, of which I later discovered were not
manifest she was actually sending in. She was making up illegible manifest just to fax to the
main.” Moreover, the supervisor stated that on September 19, 2018, she received a call from the
district stating that the Self-Service Kiosk at the store still had not been fixed since September
17, 2018.

The record contains a copy of Complainant’s October 2, 2018 Notice of Suspension (No Time
Off) of 14 days in which the supervisor placed Complainant on notice that she would be
suspended for 14 days for Unsatisfactory Performance/Failure to Follow Instructions/Conduct
Unbecoming.

The Postmaster stated that during the relevant period, he and the supervisor “reviewed the details
and specifics regarding the allegations [Complainant] failed to follow the instructions of her
supervisor…because of the egregious nature of her disregard for the instructions she had been
given and because of prior attempts to correct this behavior failed to do so.”

With regard to all six claims, beyond her bare assertions, Complainant failed to prove, by a
preponderance of the evidence, that her race, color or prior EEO activity played any role in the
events at issue.

Finally, to the extent that Complainant also offered these six incidents in support of a
discriminatory harassment claim, she again has simply provided no evidence to support her claim
that her treatment was the result of her race, color and prior EEO activity.
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A case of harassment is precluded based on our findings that Complainant failed to establish that
any of the actions taken by the Agency were motivated by her protected bases. See Oakley v.
U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of 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).

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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 (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

December 18, 2019
Date