Hilda A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Dec 19, 2019

2019002307 (E.E.O.C. Dec. 19, 2019)

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

Hilda A.,1
Complainant,

v.

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

Appeal No. 2019002307

Hearing No. 530-2015-00120X

Agency No. 4C-440-0113-15

DECISION

On February 8, 2019, 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
December 6, 2018 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician
at the Agency’s Hudson Post Office in Hudson, Ohio.

On May 8, 2015, Complainant filed an EEO complaint (later amended) alleging that the Agency
subjected her to hostile work environment harassment in retaliation for prior EEO complaints
when:

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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1. on February 11, 12, 20, and 21, 2015, March 23 and 27, 2015, and June
11, 2015, management denied her overtime opportunities,
2. on March 4 and 28, 2015 and May 2 and 22, 2015, management conducted
pre-disciplinary interviews (PDI) with Complainant,
3. on April 13 and 24, 2015, an Acting Supervisor (S1) yelled at her in front
of coworkers,
4. as of April 21, 2015, there was a box with a red light on in Complainant’s
postal vehicle and management would not tell Complainant what it meant,
5. on June 3, 2015, management issued Complainant a Letter of Warning
(LOW) for Failure to Follow Instructions,
6. on June 11, 2015, management placed Complainant on Emergency
Placement in Off-Duty Status, and
7. on June 12, 2015, management charged Complainant with Absence
without Leave (AWOL).

The Agency accepted Complainant’s claim for EEO investigation.

During the EEO investigation, for (1), management stated that it provided Complainant overtime
when available (to cover open routes or route overruns) and when there was not a concern for
time overruns on Complainant’s own route. Regarding (2), management stated that it issued
PDIs to Complainant for failure to follow supervisory instructions and to give her an opportunity
to explain her performance issues. With regard to (3), S1 denied yelling at Complainant and
stated that Complainant burst into the post office yelling that a manager was following her,
which was not the case. S1 acknowledged asking Complainant why she returned to the post
office late and reminding Complainant that she should call a supervisor if she needs assistance.
For (4), management stated that Complainant drives a different vehicle each day and the box she
referred to is the housing mechanism for the brake light. Management stated that a supervisor
and union representative inspected Complainant’s vehicle for a red box and did not find one.
Regarding (5), management stated that it issued Complainant a LOW for failing to leave to
deliver mail on time and failing to follow instructions regarding her return time. As to (6),
management stated that it placed Complainant in emergency off-duty status because she was
behaving in an erratic manner (talking loudly, flailing her arms, and slamming mail on the floor)
and would not calm down as requested by supervisors. Management stated that it tried to speak
with Complainant about her harassment claims, but her behavior seemed like she might injure
herself or someone else. Regarding (7), management stated that it instructed Complainant to
return to work on June 12, 2015 and she did not report or contact management before the start of
her tour of duty. Management acknowledged that it received medical documentation later in the
afternoon of June 12, but stated that Complainant did not have any sick or annual leave available.

Following the EEO investigation, 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
(AJ) or an immediate final agency decision. Complainant timely requested a hearing.

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The assigned AJ held a hearing over several days, commencing on March 20, 2018, and issued a
bench decision on October 31, 2018. The AJ found that Complainant’s Immediate Supervisor
(S2) and Postmaster (S3) were aware of her prior EEO activity, but determined that Complainant
failed to provide evidence that the Agency’s actions were motivated by retaliatory animus. For
(1), the AJ found that Complainant did not show that she was denied overtime beyond that which
she could handle or that others were treated more favorably. As to the March 2015 PDIs alleged
in (2), the AJ found that management issued PDIs to Complainant due to unauthorized overtime
and long delivery times after considering letter carrier standards, mail, traffic, and other
reasonable delays. The AJ noted that management did not take action beyond the March PDIs
against Complainant and treated similarly-situated individuals without prior EEO activity the
same. For the May 2015 PDIs alleged in (2) and the LOW in (5), the AJ found that management
treated similarly-situated individuals without prior EEO activity the same. Regarding (3), the AJ
found that Complainant failed to present evidence to support her contention of S1 yelling at her
in front of others. The AJ found, at most, there was a verbal exchange between S1 and
Complainant and no discipline or further action resulted. For (4), the AJ found that Complainant
was not harmed by the action alleged. With regard to (6), the AJ found that the Agency placed
Complainant in emergency off-duty status based on her irrational behavior (being disruptive to
the workplace) when they attempted to speak with her regarding her claims of harassment. For
(7), the AJ found that management instructed Complainant to call-in to work on June 12, 2015,
but she failed to do so before her tour of duty start time. Further, the AJ found that when
Complainant did contact the Agency with medical documentation to support her absence, the
documentation was inadequate for the circumstances. The AJ found that the record shows that
management “tr[ied] to work with Complainant instead of trying to deprive her of a job.”

Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. The instant appeal from
Complainant followed. On appeal, Complainant asked the Commission to reverse the Agency’s
finding of no discrimination.

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.

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).

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To establish a claim of harassment in violation of Title VII, 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). 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).

Here, we find that Complainant failed to establish discriminatory harassment. Specifically, even
if we assume that the incidents alleged rise to the level of a hostile work environment,
Complainant failed to prove, by a preponderance of the evidence, that the actions complained of
were motivated in any way by retaliatory animus. Following a hearing, an AJ reached the same
conclusion. Based on the above, we conclude that a finding of harassment is precluded by our
determination that Complainant failed to show that the Agency’s actions were motivated by a
prohibited factor. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

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 finding no discrimination.

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.

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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 discretion to grant or deny these types of requests.
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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 19, 2019
Date