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

Equal Employment Opportunity Commission

Aug 9, 2019

0120181743 (E.E.O.C. Aug. 9, 2019)

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

Dixie B.,1
Complainant,

v.

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

Appeal No. 0120181743

Agency No. 4E640006817

DECISION

On April 27, 2018, 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
April 2, 2018, 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.

ISSUES PRESENTED

Whether the final decision (FAD) correctly determined that Complainant failed to prove that she
was subjected to discriminatory harassment based on race, sex, and retaliation (prior EEO activity),
when:

1. On June 8, 9, and 17, 2017, she was monitored while on her route;

2. On June 10, 2017, she was given unauthorized overtime due to coming back late;

3. On June 10, 2017, she was given undertime in retaliation on June 8, 2017;

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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4. On June 13, 2017, a union steward told her management mentioned her socks were not part
of the dress code;

5. On October 18, 2017, the Station Manager mandated she work overtime;

6. On October 28, 2017, she was told she had to exchange her time card in order to use the
designated gas card for Route 1406;

7. On October 31, 2017, the Station Manager threatened her with Emergency Placement and
denied her request for sick leave, subsequently, she was charged with 7.01 hours of Leave
Without Pay;

8. On November 2, 2017, the Station Manager conducted a job discussion with her regarding
going 15 minutes over on her route on November 1, taking a 56-minute lunch on October
30, and for going home early on October 31;

9. On November 6, 2017, she was questioned repeatedly about a registered package that was
supposed to have been delivered on her day off; and

10. On November 10, 2017, the Station Manager replied sarcastically to her regarding her time
estimate yet when the carrier on Route 1407 told him she would not be done in 8 hours he
didn’t give her any complaints.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier (CC) at
the Agency’s Martin City Station in Kansas City, Missouri. On October 20, 2017, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), and reprisal for prior protected EEO activity as set forth above.
Complainant stated that she filed two prior EEO claims, with Agency, case numbers 4E-640- 0043-
15 and 4E-640-0025-16; and that the Supervisor Customer Service (S1) and the Manager Customer
Services (S2),were both involved in her claims. The most recent case closed on April 14, 2016.
Complainant alleged that both S1 and S2 have harassed her on several dates over a five-months
period in 2017; and that she has informed both S1 and S2 that she considered their actions
harassment. According to Complainant, they responded by telling her their actions were not
harassment; and that she was overreacting or being paranoid. Complainant noted that she also
informed Human Resources, but that an investigation was never conducted.

Claim 1:

On June 8, 2017, Complainant alleged that S2 drove down the street three separate times to watch,
approach, and harass her by taking pictures and being hostile; and that S1 gave her additional mail
even though she is not on the overtime list.
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Complainant also alleged that that S1 went to her lunch location and took a picture of her van
along with another employee’s van, while they were on their scheduled lunch break. She noted
that she was within two miles of her route and 30-minute lunch break. Complainant further
asserted that S2 interrupted her lunch to find out what she was doing and how much mail she had
left; and that S2 told her he was going to call the carrier that split the route, to demonstrate that she
was given an hour as opposed to 30 minutes. She stated that after her lunch, S2 followed her on
her park and loop, and then called a CCA to assist her; so, she would make it back to the station
by 4:30. According to Complainant, this action resulted in her getting 1-hour undertime.

Complainant asserted that management was upset that she exposed their prior harassment and were
retaliating against her; and that all male, non-African-American employees, and employees that
did not participate in EEO activity were treated in a more favorable manner.

S2 stated that Complainant had not been observed as alleged, explaining, however, that it is part
of management’s job description to observe the employees in the office, in the parking lot, as they
load their vehicles, and on their routes.

S1 asserted that she has only monitored Complainant when performing a standard Street
Observation.

Claim 2:

On June 10, 2017, Complainant asserted that she started her route late; so, she requested overtime.
She alleged that S1 immediately disapproved the request, and when she arrived back to the office
late, S2 told her she would be receiving unauthorized overtime. She noted that she was not given
undertime, because she had heavy mail and extra mail; so, she was not going to make her 8 hours.
Complainant also maintained that she was given a route she had never carried, and it was far from
her normal route. She asserted that she told management she was late because there was too much
mail for her route, she had to carry mail for another route, she did not know the route, and she
started the route late. Complainant stated that management was merely continuing its retaliatory
harassment, noting that all other carriers, except C2, a male, were treated in a more favorable
manner than herself.

S2 explained that Complainant could not be given unauthorized overtime, but that she could go
into overtime that has not been authorized by management. He added that Complainant was
assigned undertime on June 10, 2017, due to a route evaluation, and that if she did not complete
her route in 8 hours, she would be considered to have gone into unauthorized overtime.

Claim 3:

Complainant alleged that S2 and S1 gave her undertime twice over a one-week period, on June 10
and 17, 2017, when she arrived for her shift, but did not tell her why she was receiving undertime.
She asserted that undertime is for carriers with more than one business on their routes; however,
she maintained that she did not have any businesses on her route.
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S2 stated that if Complainant was given undertime, then it was due to the mail volume and the
evaluation of the route. He explained that this would be a business decision to capture all and any
undertime, in the office or on the street. S2 also explained that in accordance with the Collective
Bargaining Agreement (CBA) and other policies management was required to provide 8 hours of
work for employees; and that management tried to provide “a fair days pay for a fair days work.”
He added that if the tools management used dictated or determined the ability to capture under
time, then management must follow such direction.

Claim 4:

Complainant alleged that a Union Steward approached her relaying a message from S2 that her
colored socks were not in regulation. She explained that the message was just management
nitpicking and trying to find trivial issues to retaliate and harass her. She reiterated her claims of
continuing retaliatory harassment, noting that she is not aware of non-African-Americans or males
being told they could not wear baseball caps or sport T-shirts.

S2 stated that it is possible he did request the union steward to remind Complainant about the dress
code, explaining that an employee is expected to dress in uniform while on the job. He noted that
Complainant often wore pink socks and had to be reminded to maintain the dress code. S2 stated
that he has also had to inform a Caucasian male CC with no prior EEO activity not to wear non-
postal caps.

Claim 5:

Complainant alleged that S2 informed her that she was going to be given overtime, explaining that
S2 told her and her coworker (C1) that everyone was going to receive overtime; Complainant
however, noted S2 then whispered to C1 that C1 would not be given overtime. She asserted that
management had told them they would be receiving overtime because of mail volume and call-ins
for that day. She reiterated her claims of continuing retaliatory harassment, identifying C1 a female
CCA with no prior EEO activity as being treated in a more favorable manner in that she was not
required to carry overtime.

S2 asserted that on the date in question, he mandated Complainant thirty minutes of overtime,
along with 11 other employees. He referred to the daily assignments for all the employees that
received overtime on that date.

The record indicates that Complainant received 1.42 hours of overtime on October 17, 2017;
and .39 hours on October 19, 2017. Complainant’s non-scheduled day was October 18, 2017.

Claim 6:

Complainant asserted that she went to get a gas card to fill her van, and she was informed by S2
that she needed to leave her time card to get the gas card; and that she decided to wait until the
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designated gas day. She noted that S1 had also told her in the past that she needed to leave her
time card in order to take the gas card. Complainant stated that she would not lose her gas card.

S2 stated that if the request was on a Saturday or a Wednesday, he would have requested
Complainant’s time card in exchange for the gas card, explaining that a gas card is a secure item,
and management requested such an exchange to ensure the gas card is returned. S1 asserted that
she had just ordered new gas cards, and to keep track of the cards, management was requiring all
employees to exchange their time card for a gas card when they needed to refuel. She indicated
that everyone was required to follow this policy, and Complainant was the only one who refused
to comply.

Claim 7:

Complainant asserted that she was informed by S2 that all carriers had to write down the three
lunch areas that they would be going to for lunch breaks. Complainant maintained that S2 then
informed her that he would be walking with her. She explained that she wanted to see the
paperwork, and S2 informed her he did not have to have paperwork. Complainant stated that she
then began to feel ill, stemming from an illness from the previous day; and that she requested sick
leave, but S2 informed her that he did not believe she was ill because it was too much of a
coincidence that she became ill after being informed that he was going to walk with her.
Complainant alleged that she was then charged with 7.01 hours of Leave Without Pay (LWOP),
even though she had adequate sick leave.

S2 stated that Complainant was told that she was going to have an inspection, and she became
angry and upset. He noted that he was explaining the difference to her between counting a route
and inspecting a route, and she became angry and walked away. S2 asserted that Complainant
decided to go home sick; so, he told her she would need to show medical documentation under the
circumstances. He also explained that Complainant was not put on Emergency Placement;
however, he did note that she became volatile when informed of the inspection.

S2 provided inspection reports for all the routes and indicated that Complainant’s route had not
been inspected in almost a year. He indicated that he was following the policies outlined in the
Agency’s Handbook in ensuring that Complainant was complying with policy.

Claim 8:

On November 2, 2017, Complainant alleged that she was brought into a formal job discussion with
S1, S2, and her two Union Stewards. S2 asked her why she went over eight hours after she had
been instructed to be at eight hours. Complainant explained that there were unforeseen
circumstances that caused her to go over eight hours; and that her lunch time went over because
she was in the bathroom ill. Complainant noted that she went home early because she was sick
and had plenty of sick time.

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S2 asserted that he did have a job discussion with Complainant because of her failure to follow
instructions and extending her lunch hour. He explained that the local operation center noted that
Complainant was on a list of city carriers that are stationary for over 10 minutes, which is a
violation of the Agency rules and regulations.

Claim 9:

Complainant alleged that S2 questioned her about a registered package that should have been
delivered on November 3, 2017, which she explained was her day off; and that she told S2 to check
with her utility (U1), since the package should have been delivered on her day off.

S2 asserted that he was not aware of this allegation; however, he noted that it is management’s
responsibility to speak to employees about items that are not delivered or misdelivered on routes
they deliver.

Claim 10:

On November 10, 2017, Complainant asserted that S2 asked her if she was going to complete her
route in eight hours; and that she told him she would try her best, adding that she had worked eight
hours every day that week. Complainant alleged that S2 responded sarcastically that she was
supposed to work eight hours every day. Complainant noted that the carrier for route 1407 told
S2 that she would be over eight hours, but he did not question her.

S2 asserted that he did not reply sarcastically to Complainant on that day or any other day. He
referred to a report indicating that Complainant was stationary for 69 minutes on October 30, 2017.

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. 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). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Neither Complainant nor the Agency submitted statements or briefs 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
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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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must initially establish 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. 802 at
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). To ultimately
prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, sex, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons
for its alleged actions in Claims 2, 3, 5, 7, and 8. S2 explained that Complainant was assigned
undertime on June 10, 2017, due to a route evaluation and would have been considered to have
gone into unauthorized overtime if she had not completed her route in 8 hours; that, consistent
with applicable Agency policies and management’s business decisions, she could have been given
undertime due to her mail volume and the evaluation of the route in order to prevent her going into
an overtime situation; that Complainant and 11 other employees were mandated overtime because
of needs; that Complainant was asked to provide medical documentation when she asked to go
home sick after being informed of an inspection; and that Complainant received a job discussion
for failure to follow instructions and extending her lunch hour.

We find no persuasive evidence of pretext. Although Complainant maintained that non-African
Americans, male employees, and those employees without prior EEO activity, received more
favorable treatment than she did, she failed to substantiate her allegations and assertions with
corroborating evidence or specific instances when even one similarly situated employee outside
her protected categories received more favorable treatment under her same circumstances.
Therefore, Complainant has failed to show that management’s explanations were a pretext for
discrimination.

Accordingly, we find no discrimination regarding claims 2, 3, 5, 7, and 8.

Harassment

Regarding Complainant’s hostile work environment claim, 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
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work environment must fail with respect to claims 2, 3, 5, 7, and 8. 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 above that Complainant failed to
establish that any of these actions were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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).

With respect to claims 1, 4, 6, 9, and 10, we find that these alleged acts, even if accurately
described, are not the kind of employer conduct that would rise to the level of unlawful harassment.
First, we find no persuasive evidence that discriminatory animus played any role in these matters.
These matters appear to be work-related supervisory instructions that Complainant might have
disagreed, but which do not appear to have been related to her race, sex, or prior EEO activity.
Moreover, we do not find that S2’s alleged sarcasm (claim 10) was either severe or pervasive
enough to meet the definition of unlawful harassment. The Commission notes that Title VII is not
a civility code. Rather, it forbids “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).

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final 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.
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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.
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

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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

August 9, 2019
Date