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

Equal Employment Opportunity Commission

Mar 23, 2016

0120152485 (E.E.O.C. Mar. 23, 2016)

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

Lashawna C.,1
Complainant,

v.

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

Appeal No. 0120152485

Agency No. 4E-680-0035-14

DECISION

Complainant filed an appeal from the Agency’s June 24, 2015 final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
(Title VII) 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 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 March 4, 2014, Complainant filed an EEO
complaint, later amended on December 30, 2014, alleging that the Agency discriminated
against her on the bases of sex, age (58), and in reprisal for prior protected EEO activity
when:

1. management harassed her when she found an out-of-sequence package in her
delivery route, she heard the former postmaster was returning to the station, and the
manager taunted her about the clocks, was verbally abusive, and called her while on
vacation;
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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2. management did not pick her up during a storm;
3. management scheduled her to work her scheduled day off;
4. management placed her on emergency suspension;
5. management assigned her a postal vehicle with a steering problem;
6. management did not post new weekly work and leave schedules; and
7. she was scheduled to work her scheduled day off (Saturday)
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 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.

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.

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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:

Claims #3 & #7 (Required to Work on Scheduled Day Off)

According to the Agency, Complainant was scheduled to work on her normally scheduled day
off only when an employee could not be found to cover for Complainant. This policy applied
equally to Complainant’s co-workers in the Pierce Post Office when Complainant was
unavailable to cover for them. ROI 223-24. 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 #4 (Placed on Emergency Suspension)

The Agency explains that Complainant was placed on emergency suspension on July 18, 2014,
because she told an EEO Specialist that she was considering committing suicide. ROI at 256.
Collective Bargaining Agreement provisions specify that an employee who expresses a desire
to self harm or harm others may be placed on off-duty status. ROI at 249, 262 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 admitted to her Postmaster that she had made the statement in question. ROI at
228.

Harassment

It is well-settled that harassment based on an individual’s age, and prior EEO activity is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment under those bases, the complainant must show that: (1) she
belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was
subjected to unwelcome conduct related to his/her membership in those classes and her prior
EEO activity; (3) the harassment complained of was based on sex, age, and/or prior EEO
activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).

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

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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.

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

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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. 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 23, 2016
Date