Karen F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 20, 2018

0120162592 (E.E.O.C. Jul. 20, 2018)

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

Karen F.,1
Complainant,

v.

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

Appeal No. 0120162592

Hearing No. 531-2015-00090X

Agency No. 1K-204-0003-14

DECISION

On August 11, 2016, 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
July 14, 2016, 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 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Maintenance Operations, EAS-17, at the Agency’s Washington Network Distribution Center in
Capital Heights, Maryland. On October 20, 2014, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the bases of race (African-American), sex (female),
age (49), and in reprisal for prior protected EEO activity 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 January 14, 2014, Complainant’s manager met with Complainant’s employees to
ask them if Complainant was treating them with dignity and respect;

2. on January 15, 2014, Complainant’s manager altered Complainant’s work schedule for
the Martin Luther King (MLK) holiday;

3. on January 17, 2014 Complainant’s manager signed a leave slip for one of
Complainant’s employees;

4. on January 21, 2014, Complainant’s manager rehired two employees that Complainant
asked be released;

5. on January 10, 2014, a dead bird was placed under Complainant’s desk and
Complainant’s manager failed to undertake a proper investigation; and

6. Complainant’s manager over-hired employees causing her to be subjected to a
Reduction in Force and moved to a new workplace.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ
assigned to the case granted the Agency’s motion for a decision without a hearing and issued a
decision without a hearing on June 22, 2016. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome
of the case. For the reasons set forth below, we find that this case presents no genuine issue of
material fact requiring a hearing to be resolved.

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Claims 1 – 5 (Harassment)

It is well-settled that harassment based on an individual’s statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or
engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her
membership in those classes or her prior EEO activity; (3) the harassment complained of was based
on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance 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).

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. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Complainant must also prove that the conduct was taken because of a protected basis - in
this case because of her race, sex, age, or prior protected activity. Only if Complainant establishes
both of those elements -- hostility and motive -- will the question of Agency liability present itself.
In this case, there is insufficient evidence to establish that the harassment was severe or pervasive
or was based on her protected classes.

Here, Complainant has failed to adduced evidence of hostility or improper motive. The bulk of
the allegedly harassing incidents set out in the complaint involve Complainant’s managers
exercising their authority to make decisions Complainant believes should have been hers to make.
For example, her managers overruled her on the number of persons to be assigned to work on a
holiday weekend (Claim 2) and whether a particular employee should have been rehired (Claim
4). These are ordinary exercises of managerial discretion that a reasonable person would not regard
as hostile or abusive.

In addition, there is no evidence that any of the claimed harassing actions undertaken by Agency
management or by Complainant’s co-workers were based on her race, sex, age, or prior protected
EEO activity. There is no evidence of a racist slur or sexist ridicule that would support an inference
of discriminatory animus. In each case, the Agency provides a nondiscriminatory explanation for
its actions. Complainant fails to offer evidence to rebut any of those explanations.

Claim 6 (Disparate Treatment – Reduction in Force)

To prevail in a disparate treatment claim such as this, 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).
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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 Agency explains that Complainant was reassigned because her position was eliminated as the
result of a Reduction in Force (RIF) order which required the elimination of one maintenance
supervisory position at Complainant’s facility. This is a legitimate, nondiscriminatory reason for
the Agency’s action. Complainant contends that the Agency treated two male coworkers more
favorably than Complainant in that the coworkers, who had less time on the job than Complainant,
were not reassigned away from the Washington Network Distribution Center as was Complainant.
The record does not support Complainant’s position. Those employees were not reassigned as a
result of the RIF because, as veterans, their seniority rights were superior to Complainant’s, a
nonveteran. ROI Exhibit 36 at 552. We find that Complainant has not established that the
Agency’s reason was pretext for discrimination.

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 order implementing the EEOC
Administrative Judge’s decision without a hearing finding that Complainant was not discriminated
against as alleged.

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), at Chap. 9 § VII.B
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(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

July 20, 2018
Date