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

Equal Employment Opportunity Commission

Mar 18, 2016

0120141859 (E.E.O.C. Mar. 18, 2016)

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

Janee S.,1
Complainant,

v.

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

Appeal No. 0120141859

Agency No. 4E-680-0020-13

DECISION

Complainant filed an appeal from the Agency’s March 27, 2014, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time City
Carrier at the Pierce, Nebraska Post Office. On June 24, 2013, Complainant filed an EEO
complaint, which she later amended on December 6, 2013, alleging that the Agency
discriminated against her on the bases of age (57) and in reprisal for prior protected EEO
activity when:

1. she was instructed to use either sick or annual leave while she was out of work
due to a work-related injury;

2. someone turned a delivery confirmation upside down in her tub;

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. she became aware her vehicle was unsafe to drive but an appointment had not
been made to fix it;

4. she was issued a Letter of Warning related to a dog incident on April 25, 2013;

5. her schedule was not posted timely;

6. her edit sheet was not updated with the changes she made;

7. her request for 12 hours of FMLA sick leave was denied;

8. she was forced into a closed office with management to discuss her EEO claim;

9. management brought her a small flat rate box and commented, "Sometimes
things are bigger than they look. just wanted you to be aware of it," to
intimidate her;

10. her leave request for November 29, 2013, was denied;

11. her mail tub locations were reversed for the Elementary School and the High
School;

12. management is conspiring to force her to retire;

13. management did not post the schedule timely to afford her time to know her
scheduled days off; and

14. management overcharged her for annual leave and undercharged her sick leave
requests.2

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). In accordance with Complainant’s
request, 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.

2 The complaint contained two additional claims later dismissed by the Agency on procedural
grounds. Complainant raised no challenges to the Agency's dismissal on appeal; therefore, the
Commission will not address those claims in this decision.

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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”).

Disparate Treatment Discrimination

To prevail in disparate treatment claims such as those addressed below, 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 generally 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). The prima facie inquiry may be dispensed with where the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

The claims asserting disparate treatment discrimination included:

Claim #4 (Letter of Warning)

According to the Agency, Complainant received a letter of warning because she failed to
promptly inform the Agency in accordance with established procedures when she was attacked
by a dog while delivering her route. This is a legitimate, nondiscriminatory reason for the
Agency’s action. Complainant has not proven the Agency’s explanation to be a pretext
designed to conceal discriminatory animus. Indeed, Complainant admits that she did not
immediately report the incident. Report of Investigation (ROI) at 511.

Claim #7 (FMLA Leave Denied)

The Agency contends that Complainant was never denied FMLA leave. The uncontradicted
evidence shows that during the period in question (July 18, 2013 to October 16, 2013) all

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FMLA leave requests made by Complainant were granted. ROI at 431. Accordingly we
conclude that Complainant has failed to make a prima facie showing on this claim.

Claim #10 (Annual Leave Denied)

The Agency explained that Complainant’s request to take annual leave on November 29, 2013,
the day after Thanksgiving, was denied because the day after Thanksgiving is a heavy mail day
and leave requests for that day were denied. The only exception was leave granted to a rural
carrier whose entitlement to leave was governed by different standard operating procedures
from those governing other employees in Complainant’s facility. ROI at 443. This is a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not proven the
Agency’s explanation to be a pretext designed to conceal discriminatory animus.

Claim #14 (Improper Leave Charges)

The Agency denies that Complainant was improperly charged for annual or sick leave. The
evidence shows that during November 2013, Complainant was working less than 8 hours per
day. Under the procedure then in place, she was charged with annual or sick leave for each
day in the amount necessary “to fill her hours to 8 hours each day.” For example on
November 25, 2013, “she required 3.96 hours of annual leave to fill her hours to eight hours.”
This is a legitimate, nondiscriminatory reason for the Agency’s action. ROI at 439.
Complainant has not proven the Agency’s explanation to be a pretext designed to conceal
discriminatory animus.

Harassment

To establish a claim of harassment a 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).

Therefore, 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 age
and prior protected EEO activity). Only if Complainant establishes both of those elements,
hostility and motive, will the question of Agency liability present itself.

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Construing the evidence in the light most favorable to Complainant, the Commission finds that
Complainant has not shown she was subjected to a hostile work environment. The record
reflects that the alleged incidents were more likely the result of routine supervision, personality
conflicts, and general workplace disputes and tribulations. Even assuming that the alleged
conduct was sufficiently severe or pervasive to create a hostile work environment,
Complainant failed to show that the Agency's actions were based on discriminatory or
retaliatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we affirm the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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

March 18, 2016
Date