Denese G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120172936 (E.E.O.C. Nov. 7, 2018)

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

Denese G.,1
Complainant,

v.

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

Appeal No. 0120172936

Hearing No. 550-2017-00233X

Agency No. 4E570004416

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 1, 2017
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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier
Assistant 2, Q-01, at the Agency’s Dillon Post Office facility in Dillon, Montana.

Complainant initially contacted an EEO counselor on June 15, 2016. The EEO counselor’s report
indicates that Complainant alleged that: (1) in October and December 2015 and January 2016,
she reported a safety violation because the brakes were not working on her postal vehicle; (2) in
April 2016, her position had been twice offered to another person (younger male) while she was
still in the position and the Agency’s management had attempted to terminate her or pay her to

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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resign in order to give him the position; (3) she was “put up for removal” in April 2016, after an
on-the-job injury, and in May 2016; (4) on April 29, 2016, she reported to management that she
had been bitten by a dog while delivering the mail and on May 10, 2016, management issued her
a Notice of Removal, which, following Complainant’s filing of a grievance, was reduced to a 14-
day suspension which would remain in Complainant’s file until May 11, 2017; (5) in July and
August 2016, Agency management took away overtime from Complainant because she filed an
EEO complaint; and (6) on an unspecified date, Complainant was informed by the police that she
was stalking a co-worker and, during the investigation, the postmaster lied. Complainant also
alleged that the Agency had subjected her to a hostile work environment since July 12, 2014. Her
allegations include that the Agency management and her co-workers berate, yell, bully, harass,
and humiliate her; she has been ordered off the floor, told to go home, or get off the clock by
persons not in charge of the office; and she has been subject to negative comments about her
work performance.

On September 27, 2016, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of sex (female), age, and reprisal for prior protected EEO
activity in April and May 2016. She alleged that she was fired for reporting an accident and in
retaliation for grievances; her job had been offered to a younger male carrier, prior to her being
given a notice of removal; and she had been disciplined and given a notice of removal for a dog
bite when other carriers have received no discipline for a dog bite.

On October 18, 2016, the Agency issued a Partial Acceptance/Partial Dismissal of Formal EEO
Complaint indicating Complainant alleged discrimination on the basis of sex (female), age, and
retaliation for her current EEO activity when: (1) on or around April 6, 2016, Complainant was
“put up for removal” and her position was offered to another person and (2) on May 11, 2016,
she received a notice of removal for failure to work in a safe manner, which subsequently
resulted in the notice of removal being reduced to a one-year 14-day letter of suspension. The
Agency accepted claim 2. The Agency dismissed claim 1, pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO counselor contact, noting Complainant did not make initial
EEO contact until June 15, 2016, which was 70 days after the alleged adverse action on or
around April 6, 2016. The Agency also noted that, during the informal stage of the complaint
process, Complainant raised the issue of, in October 2015, December 2015, and January 2016,
Complainant reported a safety violation because of the brakes not working on her postal vehicle,
but these were not included in the formal complaint.

On October 27, 2016, Complainant submitted a statement alleging the Agency continued to
subject her to a hostile work environment that included ongoing and continuing harassment,
intimidation, and bullying, which had increased since she filed her complaint. She alleged that
her postal vehicle continues to be improperly maintained. With respect to her allegations
regarding her job being offered to a younger male, she alleged she did not have written
confirmation of his being offered her job until July 2016, the younger male has since been hired
by the Agency and, since his hiring, her hours have been reduced as an act of discrimination and
discipline.

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On November 3, 2016, the Agency issued an Acknowledgement and Partial Acceptance/Partial
Dismissal of 1st Amendment to Complaint. The Agency amended the complaint to include
discrimination on the basis of sex, age, and retaliation for Complainant’s current EEO activity
when, on specified dates, her work hours were reduced.

The investigation into the complaint, as amended, revealed the following summary of relevant
evidence.

The postmaster (male) responded to Complainant’s allegations. He indicated that, with respect to
the brakes on Complainant’s postal vehicle, on February 19, 2016, a preventative maintenance
inspection was done and the brakes were in good working order but later were replaced; he had
not been informed on any issues with Complainant’s vehicle in October or December 2015, but
there may have been an issue in January 2016. With respect to the alleged Notices of Removal,
Complainant was issued a Letter of Removal for failure to work in a safe manner after a slip and
fall on March 7, 2016, at which time Complainant had a 14-day suspension in her records for
failure to work in a safe manner for a rollaway accident on December 1, 2014. He said that
Complainant was not given a Letter of Removal for being bitten by a dog. Rather, she was
issued the Letter of Removal for failure to work in a safe manner, as she had failed to bring her
dog spray on her walk, did not properly use her satchel for protection, and had thrown dog
biscuits to feed the dog at issue.

On June 28, 2016, Complainant provided the postmaster with written statements about two
fellow employees who made her feel uncomfortable. Upon inquiry, the other employees
provided reports opposite of Complainant’s. Unable to resolve the matter, the postmaster gave a
speech to all employees on treating everyone with dignity and respect. With respect to hours and
overtime, he stated that Complainant is guaranteed two (2) hours of work per day and she carries
the auxiliary route and the volume of mail fluctuates seasonally. Complainant was taking more
than eight hours and sometimes more than ten hours to do what was previously done in less than
eight hours. On May 18, 2016, the postmaster received a call from a regular carrier that
Complainant was stalking her. He contacted the Agency’s Postal Inspection Service and was
told to contact the police, which resulted in an investigation.

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 requested a hearing but the
AJ remanded the complaint to the Agency for the issuance of a final agency decision because
Complainant failed to respond to the AJ’s notice/order to explain why there were genuine issues
of material fact in dispute or questions of credibility to resolve with regard to Complainant’s
allegations. 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.

The instant appeal followed. However, Complainant has not submitted a brief or argument in
support of her claim.
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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 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”).

Complainant alleged that the Agency treated her disparately. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, 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 Constr. 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 Tex. Dep’t of Cmty. 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 on the basis of a prohibited
reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume Complainant has established a prima facie case with respect to her claims, her
claims nevertheless fail, as the record establishes the Agency had legitimate and
nondiscriminatory reasons for its actions. Complainant has alleged several adverse Agency
actions. With respect to her allegations regarding ongoing safety and/or maintenance problems
with her postal vehicle, the postmaster explained that Complainant’s vehicle had been inspected
and repairs were made accordingly. With respect to Complainant’s allegations that her job was
offered to a younger male, who was subsequently hired, Complainant was not removed because
of or to facilitate his hiring. With respect to Complainant’s allegations that she was “put up for
removal,” we note that the record shows Complainant has a history of job-related safety issues
and, as discussed above, the postmaster indicated that she was issued letters of removal for
failure to work in a safe manner, including relating to (1) an instance after a slip-and-fall
accident, at which time she had a 14-day suspension in her record for a rollaway accident, and
(2) failing to follow safety procedures relating to interactions with dogs. With respect to
Complainant’s allegations relating to reduced hours and overtime, the postmaster explained that,
as a city carrier assistant, Complainant is not guaranteed a full-time schedule or a schedule with
overtime and, while Complainant got more hours when the office was short-handed and had
vacancies, her hours were reduced when he hired to fill vacancies. With respect to Complainant’s
allegations relating to the alleged stalking incident, the postmaster indicated the police conducted
the investigation and there were conflicting reports of the incident.
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Complainant has not established by a preponderance of the evidence, that the legitimate, non-
discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or
motivated by some unlawful discriminatory animus.

With respect to Complainant’s allegations that the Agency subjected her to a hostile work
environment, we find that she has failed to establish a prima facie case. Even if her allegations
relating to yelling and screaming, berating, being subject to negative comments about her work
performance, etc. were true, we find they are insufficiently severe or pervasive to have altered
the conditions of her employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (October 16, 1998); and Phillips v.
Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a
supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him
with AWOL, and disagreed with the time the complainant entered into a sign in log, were found
to be insufficient to state a harassment claim). The allegations, assuming they are true, were
isolated incidents that are insufficient to support a prima facie case of harassment. See Rennie v.
Dalton, 3 F.3d 1100 (7th Cir. 1993). Moreover, Complainant failed to establish that her sex, age
or retaliatory animus played any role in the incidents she proffered in support of her harassment
claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision.

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.
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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.

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.

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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 7, 2018
Date