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

Equal Employment Opportunity Commission

Nov 30, 2018

0120171913 (E.E.O.C. Nov. 30, 2018)

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

Georgianne B.,1
Complainant,

v.

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

Appeal No. 0120171913

Hearing No. 410-2014-00222X

Agency No. 1G-311-0003-13

DECISION

On May 3, 2017, 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 6, 2017, final order 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 Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center facility in Augusta, Georgia.
Complainant indicated that she had previously worked at an Agency facility in West Palm
Beach, Florida. While in the Florida facility, she indicated that she would get a 15-minute break
in the first two hours of her shift, a 30-minute lunch, and another 15-minute break in the last two
hours of her shift. However, when she arrived at the Augusta facility, she was given 10-minute
breaks, but they would be broken down into smaller breaks.

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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This became a source of contention with management. She was instructed to let her supervisor
(“Supervisor”) (male) know when she was going on break and when she returned from break.
She indicated that there were times when she was not allowed to take a break. Complainant
asserted that she had additional issues with management. She was issued disciplinary actions.
She also claims the Supervisor subjected her to harassment, including speaking to Complainant
in a “demoralizing” manner, following her on break, and denying work assignments.

Complainant contacted the EEO Counselor. On April 2, 2013, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of sex (female),
disability (knee), and reprisal for prior protected EEO activity when she was subjected to
harassment and disparate treatment. In support of her claim, Complainant alleged that the
following events occurred:2

1. Since October 30, 2012, Complainant had been denied appropriate breaks during
her scheduled shift;
2. Since October 30, 2012, she had not been provided adequate notice to work
overtime.
3. On November 4, 2012, she was spoke to in a “demoralizing” manner.
4. On November 5, 2012, she was denied work assignments and when she requested
a shop steward, she was denied;
5. On May 15, 2013, she was issued a Letter of Warning (LOW) for unsatisfactory
work performance;
6. On May 22, 2013, her break was delayed;
7. Since October 30, 2012, her supervisor (Supervisor) would follow her to the break
room, bathroom, and watched her when she comes and goes on break.
8. On February 27, 2013, the Supervisor yelled at her for talking to a coworker.
9. On April 2, 2013, the Supervisor instructed her to put on a jacket.
10. On April 2, 2013, after the Supervisor instructed her not to wear her jacket, she
reported this harassment to management and received no response from
management.
11. On June 18, 2013, a supervisor (Supervisory DO) asked her about her EEO
activity and subsequently stopped talking with her.
12. On June 19, 2013, she as subjected to sexual and non-sexual harassment.
13. On June 19, 2013, Complainant requested four hours of sick leave under the
Family Medical Leave Act (FMLA) and was instructed to bring in documentation.
14. On an unspecified date, Complainant was instructed that she must notify her
manager (Manager) when leaving the work area to go to the restroom.

2 We note that Complainant filed six amendments to her original formal complaint. The list
provided included the events raised by Complainant in her formal complaint, as well as the
amendments to her formal complaint.
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15. On July 17, 2013, the Supervisor yelled and screamed at her. When she had a
meeting with the Supervisor and the Manager, the Supervisor continued to
disrespect her and later issued her a seven-day suspension.3
16. On unspecified dates to include July 7, 2013, she was forced to rotate between
sweeping and feeding the machine, which her other coworkers were not instructed
to do.
17. On an unspecified date, she was charged with 0.80 hours of Absence without
Official Leave (AWOL) and subsequently, on October 25, 2013, she was issued a
Letter of Warning (LOW).

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 timely requested a hearing
and the AJ held a hearing on April 16, 2015, and issued a decision on March 20, 2017.

The AJ determined that Complainant failed to show that she was subjected to harassment based
on sex in that she produced no evidence that the alleged events occurred based on her sex. He
then determined that Complainant did not show that she was subjected to unlawful harassment
based on her prior EEO activity. The AJ noted that Complainant failed to provide evidence that
the Supervisor was aware of her prior EEO activity. Finally, as to Complainant’s claim of
disability-based harassment, the AJ concluded that Complainant did not provide any evidence
that the allege events was based on her presumed disability. As such, the AJ found that
Complainant failed to show that she was subjected to harassment as alleged. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected her to discrimination and/or harassment as alleged.

This appeal followed without specific comment. The Agency asked that the Commission affirm
its final action implementing the AJ’s decision finding no discrimination and/or harassment.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

3 In Complainant’s affidavit, she indicated that the date of this event was July 17, 2013, not July
7, 2013 as stated in her complaint. We note that the AJ’s decision listed the event as July 7,
2013.
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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Dismissal of Claim (13)

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age,
disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr.
21, 1994).

The Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No.
05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept.
22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). We note
that Complainant alleged discrimination when she was told to bring in documentation to support
her request for leave under FMLA. The Commission notes that the claim surrounding the denial
and processing of her FMLA leave request constitutes a collateral attack on the FMLA process.
The FMLA falls under the regulatory ambit of the Department of Labor, not the Commission.
Therefore, the Commission has no jurisdiction over this type of claim. We also note that
Complainant has not asserted that the leave under the FMLA would constitute a reasonable
accommodation, and has not alleged that she was denied accommodation with respect using her
sick leave or annual leave. As such, we find that claim (13) is outside the jurisdiction of the
Commission.

Disparate Treatment

In claims (1), (2), (4), (5), (6), (9), (10), (15), (16), and (17), Complainant alleged events which
constitute claims of disparate treatment. A claim of disparate treatment based on indirect
evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981).
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Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990). For the purposes of analysis, we assume Complainant is an
individual with a disability. 29 C.F.R. § 1630.2(g)(1).

Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory
reasons for its actions. In claim (1), she stated that since October 30, 2012, Complainant had
been denied appropriate breaks during her scheduled shift. In addition, Complainant stated in
claim (6), that on May 22, 2013, her break was delayed. The Supervisor stated that when he
arrived at the Augusta facility, there were issues. He averred that individuals were not able to go
to breaks when they wanted to and they had to work along with the timetable as far as processing
mail and allowing the breaks. He indicated that there were enough personnel to rotate the breaks
so that it did not disturb operations. They would have a person available to step in to do the
break rotation. However, the Augusta facility was understaffed and there were occasions when
individuals would miss breaks because of work floor needs. Following conversations with the
Union, the Supervisor stated that an agreement was reached that they would allow Complainant
to make up the break if she was not able to take the break on a particular day. Further, he
asserted that the issue of the breaks was unrelated to Complainant’s protected bases but rather
the operation of the entire floor.

In claim (2), Complainant alleged that since October 30, 2012, she had not been provided
adequate notice to work overtime. Complainant asserted that the Supervisor and Supervisory
DO told her “one click before it was time for us to go home” to inform her that she was to work
overtime. She believed that this was not appropriate and was a violation of the collective
bargaining agreement. The Plant Manager testified that they provide employees 30 minutes
notice prior to letting them start overtime that they can continue to work on overtime. The
Supervisor also stated at the hearing that he informed Complainant of the need for overtime at
the moment it was needed. He did not recall telling anyone about to clock out when they were
informed of overtime. He noted that the rule is that the employee is supposed to be notified of
overtime 30 minutes before the employee is to leave and clock out. As such, the Supervisor
denied that the event took place as alleged by Complainant.

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As to claim (4), Complainant alleged that on November 5, 2012, she was denied work
assignments and when she requested a shop steward, she was denied. The Plant Manager
indicated that Complainant wanted to work in the registry room. He averred that the registry
room is a bid job and the person who was assigned the bid job had the right to perform the
registry room bid job. Further, if the registry bid employee is out, there was a relief person
assigned to the registry room bid job. Complainant asserted that the Supervisor was working in
the registry room. The Supervisor averred that he did not work that assignment but as a
supervisor, he is held accountable and oversees the room. Therefore, the Supervisor testified that
Complainant may have seen him in the registry room conducting an audit as part of his
supervisory duties. The AJ also found that the Supervisor indicated that he did not believe that
Complainant was ready to handle the duties of the Registry Clerk position and he had others who
were available to be used in the registry room on an as needed basis.

On May 15, 2013, Complainant was issued a Letter of Warning (LOW) for unsatisfactory work
performance which she raised in claim (5). The Plant Manager averred that the facility noted
that things were being either mislabeled, going to the wrong place, or not getting into the correct
facility or the plant. The facility management had several talks about making sure the mail was
placed in the right tray and labeling them correctly. Complainant was issued the LOW based on
the Agency’s discovery that on April 22, 2013, a tray labeled for one facility contained mail for
another facility. As such, Complainant was warned for the failure to follow proper procedure for
mail distribution.

On April 2, 2013, the Supervisor instructed her to put on a jacket which was raised as claim (9).
Subsequently, in claim (10), she stated that the Supervisor instructed her to take the jacket off.
The Supervisor averred that the facility had a meeting regarding the dress code policy for the
Agency presented by the Area Manager. Complainant arrived at work with a sleeveless shirt.
The Manager testified that all employees must cover their arms. She noted that on the day in
question, Complainant arrived wearing a sleeveless top. She also stated that when she sees any
employee wearing a sleeveless shirt, she has that employee correct the situation regardless of
sex. The Supervisor instructed Complainant, in compliance with the dress code policy, to wear a
jacket or hoodie. He averred that Complainant obtained a hoodie from a coworker which was
too big. She wore it but the sleeves were too big. She rolled the sleeves up but she left the
hoodie unbuttoned or unzipped. As such, the front of the hoodie was open. The Supervisor
noted that Complainant works on a mail feeding machine and that anything could get caught up
in the machines, including long hair, loose jewelry, and loose clothes. Out of concern for her
safety, the Supervisor had Complainant remove the hoodie.

As to claim (15), Complainant raised the seven-day suspension she received on July 17, 2013.
The Supervisor had given Complainant a directive to switch places with her partner on June 15,
2013. On June 19, 2013, Complainant refused to comply with the directive. The Supervisor
submitted a request for disciplinary action to Labor Relations on June 27, 2013, requesting the
issuance of a seven-day suspension. As a result, the Agency issued Complainant the suspension.
We note that pursuant to a grievance settlement, the suspension was reduced to a LOW.

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On unspecified dates to include July 7, 2013, Complainant alleged she was forced to rotate
between sweeping and feeding the machine, which her other coworkers were not instructed to do
as raised in claim (16). The Supervisor stated at the hearing that the general standard operating
procedures call for the rotation of the positions every two hours. However, the facility allows for
the two clerks assigned the feeding machine that if one prefers to feed and the other to sweep the
entire time of the tour or longer than the two-hour limit, then the clerks can do so. He indicated
that clerks can chose their time so long as there is no deterioration of the performance of the
machine. On the date in question, the Supervisor noted that they noticed on the machine that
they were not meeting the facility’s objective. Based on concern for performance, they asked
Complainant and her fellow clerk to rotate positions.

On September 11, 2013, as raised in claim (17), Complainant was charged with 0.80 hours of
Absence without Official Leave (AWOL) and subsequently, on October 25, 2013, she was issued
a LOW. The Plant Manager testified that Complainant called in at “17:22” that she was running
late for work and that she was scheduled to work at “16:30.” As such, Complainant called in
after her scheduled report time. The Plant Manager averred that Complainant was AWOL and in
the district, due to the charge of AWOL, Complainant was automatically issues the LOW.

Based on our review of the record, we find that the Agency provided legitimate,
nondiscriminatory reasons for its actions. We turn to Complainant to show that the Agency’s
reasons constituted pretext. In response, Complainant provided assertions without evidence that
the events constituted disparate treatment. Therefore, we determine that Complainant failed to
establish that the Agency’s actions constituted unlawful discrimination based on her sex,
disability, and/or prior EEO activity.

Harassment

In her harassment claim, in addition to the incidents discussed above, Complainant alleged that
the Supervisor spoke to her in a “demoralizing” manner, he followed her to the break room,
bathroom and monitored her breaks, and he yelled at her for speaking with a coworker. She
asserted in claim (12) that she was subjected to “sexual and non-sexual harassment.” She alleged
that on one day, the Supervisor stood behind where she was working and she believed that if she
moved, she would have touched his crotch. Complainant also alleged that she was watched,
followed, and monitored by management regarding her breaks.

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 a protected basis – in this case, her sex, disability and/or retaliatory
animus. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.

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Here, as already concluded above, there is no evidence to support a finding that Complainant’s
sex, disability or prior protected activity played any role whatsoever in the decisions in claims
(1), (2), (4), (5), (6), (9), (15), (16), and (17). Moreover, the responsible management officials
provided a legitimate, non-discriminatory explanation for the events alleged as noted.
Furthermore, regarding the additional events raised in support of her claim of harassment, the AJ
determined that Complainant’s claims were “speculative, with nothing more concretely
providing the nexus to be considered harassment.” Complainant has provided no evidence or
argument to refute the AJ’s findings. In sum, Complainant failed to prove that her sex,
disability, or retaliatory animus played any role in the incidents she proffered as evidence of her
harassment claim.4

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the AJ’s finding of no discrimination and/or
harassment and the Agency’s final action adopting the AJ’s 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. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),

4 The AJ did not specifically address Complainant’s allegation (11) that, on June 18, 2013, the
Supervisory DO asked her about her EEO activity and subsequently stopped talking with her.
The record indicates that Supervisory DO retired prior to the hearing held in April 2015.
Complainant failed to specifically address this matter on appeal. As such, we decline to address
this claim any further.

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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 30, 2018
Date