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

Equal Employment Opportunity Commission

Feb 17, 2016

0120143023 (E.E.O.C. Feb. 17, 2016)

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

Libby K.,1
Complainant,

v.

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

Appeal No. 0120143023

Hearing No. 520-2012-00318X

Agency No. 4C-140-0036-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 29, 2014 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time City
Carrier at the Agency’s Post Office in Tonawanda, New York. Complainant claims that
management, and especially the Postmaster, harassed her by constantly questioning her about
her work. Complainant kept a log of daily events that occurred at the Post Office where
management observed, questioned, or spoke to her about her time management and work
performance. For example, Complainant alleges that on February 15, 2011, the Postmaster
and a manager (M1) stopped her on her route and informed her that they had timed her
flipping through mail for five minutes. Additionally, on March 4, 2011, Complainant claims

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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that M1 told her that the Postmaster had watched her on her route and would likely talk to her
the next day. On April 28, 2011, Complainant alleges that the Postmaster asked her why it
took 22 minutes to load the day before and why she took a 36-minute lunch. In addition,
Complainant claims that she received numerous discussions about her work deficiencies from
the Postmaster and other supervisors.

In addition, Complainant claims that the facility has too many supervisors who do not
coordinate with each other. As a result, Complainant contends that she and other employees
receive conflicting instructions. Complainant claims that the Postmaster is responsible for the
confusion.

Complainant alleges that on one of her days off, a co-worker (CW1) delivered her route and
one of the packages was later stolen from an address. Complainant claims that the Postmaster
approached and questioned her about the incident, but never reprimanded CW1.

Complainant claims that the Postmaster denied her overtime on June 13, 2011, and on other
dates. The requests for overtime resulted from a request to take longer than the projected time
to finish delivering a route. Complainant admits that management often denies overtime
requests when the daily projections do not indicate a need for extra time; however, she
believes that older, more experienced employees know better how long a route will take
regardless of the time projections.

On June 19, 2011, Complainant alleges that the Postmaster assigned her “down time” on
another route, although she had overtime on her own route. Supervisors assign a carrier to
down time when his or her own route is projected to take less than eight hours or other
deliveries are prioritized higher than that carrier’s. Complainant admits, however, that most
other employees were routinely assigned downtime.

On August 31, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of sex
(female) and age (52) as evidenced by multiple incidents including, inter alia, management
excessively questioned her about work performance; management subjected her to unfair
observations in the office and route; she was yelled at and given discussions and conflicting
instructions; management made false accusations; she was denied overtime on June 13, 2011;
and she was given down time on another route on July 29, 2011.

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). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on July 15, 2014.

In his decision, the AJ determined that the alleged conduct at issue was not sufficiently severe
or pervasive to establish a hostile work environment. In so finding, the AJ concluded that
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Complainant presented no evidence demonstrating that management’s interactions with her
were threatening or humiliating or unreasonably interfered with her work performance.
Accepting that the Postmaster frequently criticized Complainant’s work performance and
conduct, and disciplined her for it, criticizing an employee's work alone does not amount to a
hostile work environment. Furthermore, the AJ found that the record showed that the
Postmaster’s actions toward Complainant were routine and applied to other employees.
Indeed, Complainant admitted this by asserting that the Postmaster’s management style and
strict adherence to "numbers" and regulations were the reason for his frequent discussions and
interactions with her. Finally, the record revealed that Complainant’s supervisors also
reprimanded Complainant for her performance and conduct deficiencies. As such, the AJ
found that Complainant failed to show that the alleged incidents were based on discriminatory
animus. As a result, the AJ found that Complainant had not been subjected to a hostile work
environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Postmaster singled her out and subjected her to a
hostile work environment. Complainant alleges that the Postmaster falsely accused her of
threatening a co-worker and used supervisors and 204B supervisors to harass her.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

Hostile Work Environment

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
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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, sex or
age). Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was subjected to a hostile work environment as evidenced by multiple incidents.
Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ 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
retaliatory animus. For example, the Postmaster explained that he questioned Complainant
about her work performance and observed her work performance because, among other things,
Complainant often returned to the office late due to time-wasting tactics, expanded her route on
the street, expanded her lunch break, deviated from her route, and made excessive stops. ROI,
at 237. The Postmaster added that Complainant refused to change her bad habits and the
Agency needed employees to work expeditiously to get the work done. Id. at 237-38. Other
management officials confirmed that all employees were observed occasionally and more often
when that employee had discipline or performance issues. Id. at 373, 387. Likewise, the
Postmaster confirmed that he had numerous discussions with Complainant in an effort to
improve her work performance and correct her bad habits. Id. at 241.

Regarding her claim that she was falsely accused about stolen mail, the Postmaster explained
that he received a report of a stolen parcel and simply questioned Complainant as the regular
carrier of the route about the security details of the address. ROI, at 242. The Postmaster
noted that he never accused Complainant of anything and just needed information that the
substitute carrier would not have. Id. The Postmaster added that he spoke with CW1 about
the incident. Id.

As to her claim that the Postmaster denied her overtime, the Postmaster affirmed that he did
not assign overtime and that the supervisor running the floor had that responsibility. ROI, at
243. Complainant’s supervisor (S1) asserted that management distributes overtime equitably;
however, if Complainant’s route was not projected to need overtime, the request would be
denied. Id. at 375. Finally, with respect to the assignment of down time, the record indicates
again that supervisors were tasked with making these assignments, not the Postmaster. Id. at
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376. S1 noted that it was routine to assign a carrier time on another route if that carrier’s own
route was light and did not show eight hours of work. Id.

The Commission finds that Complainant has not proffered any evidence from which a
reasonable fact finder could conclude that the Agency's explanation was a pretext for
discrimination. As a result, the Commission finds no basis to disturb the AJ's summary
judgment decision finding that Complainant was not subjected to discrimination or a hostile
work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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

February 17, 2016
Date