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

Equal Employment Opportunity Commission

Oct 29, 2019

0120182692 (E.E.O.C. Oct. 29, 2019)

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

Lisa C.,1
Complainant,

v.

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

Appeal No. 0120182692

Hearing No. 510-2016-00031X

Agency No. 1G-336-0070-15

DECISION

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 June 28, 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. 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 Maintenance
Mechanic, PS-07, at the Agency’s Production and Distribution Center in Fort Meyers, Florida.

On May 15, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to
discrimination and a hostile work environment in reprisal for prior protected EEO activity as
evidenced by several incidents, including: she was questioned and scolded about the work she was
performing; she was denied opportunities for advancement; she was denied the opportunity to
study online; management and her co-workers harassed her and management supported these

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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actions; she was segregated from the work force; and since October 17, 2014, she has been rated
“Ineligible” for placement on the Maintenance Promotion Eligibility Register (PER).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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. The AJ assigned to the matter determined that the
claims accepted for investigation were too vague and held a status conference with the parties to
determine the nature of Complainant’s allegations. As a result of that conference, the AJ
determined that Complainant was alleging that the Agency discriminated against her and subjected
her to a hostile work environment in reprisal for prior protected EEO activity when:

1. On or about April 2, 2014, Complainant’s coworker (CW1) reported to work early,
proceeded to the Agency’s battery room, and began harassing Complainant until
the Supervisor of Maintenance Operations (SMO) intervened;
2. On or about July 19, 2014, CW1 accused Complainant of unsafely replacing
batteries;
3. On or about March 11, 2015, the Manager of Maintenance Operations (MMO)
questioned and scolded Complainant about the work she had been performing;
4. On or about April 14, 2015, CW1 convinced another coworker (CW2) to work with
him instead of following SMO’s instruction to work with Complainant;
5. On or about June 11, 2015, one of Complainant’s supervisors (S2) announced
Complainant’s bidding selection during a meeting, then warned employees “to look
out” and be sure to wear protective equipment for Complainant would be watching.

Regarding Claim (1), on April 2, 2014, Complainant alleged that CW1 reported to work two hours
earlier than scheduled to “head straight to the battery room and start rough handling” Complainant.
Complainant claimed that CW1 then called SMO and made derogatory remarks to SMO about
Complainant. CW1 had refused to inspect a problem on a machine until Complainant changed the
machine’s battery. The Agency investigated the incident and found Complainant’s claim of
physical contact to be unsubstantiated. With respect to Claim (2), Complainant claimed that
months later, CW1 accused Complainant of unsafely replacing batteries. The battery at issue
weighed more than a 1,000 pounds and needed to be placed securely to ensure no employee injury.
CW1 stated that he offered to assist Complainant with the battery as it appeared to be jammed in
an unsafe manner, but Complainant told him to leave the battery room and that he was not her
supervisor.

As to Claim (3), Complainant had been assigned several responsibilities on March 11, 2015, one
of which was to paint railings. Complainant left her painting assignment when called by S2 to
help repair an industrial shredder.

2 The Agency dismissed several claims Complainant raised in her formal EEO complaint as having
been raised in prior EEO complaints. Complainant did not challenge the dismissal of those claims
while the matter was before the EEOC Administrative Judge (AJ) or on appeal; therefore, we will
not address the dismissed claims herein.
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MMO stopped Complainant as she walked by and asked why she was not painting. Complainant
pointed to an area where she had painted. MMO did not discern any fresh paint and needed the
building painted for an upcoming inspection. MMO said that she did not blame Complainant, but
rather Complainant’s supervisor (S1) for failing to prioritize the painting assignment. MMO
discussed the matter with other management officials but denied speaking of Complainant in a
derogatory way.

With respect to Claim (4), Complainant alleged that CW1 convinced CW2 to work with him
instead of Complainant after learning that Complainant needed CW2’s assistance, and that this
was part of CW1’s pattern of harassing Complainant. Complainant claimed that CW1 would often
call employees away immediately after Complainant asked for assistance.

Regarding Claim (5), Complainant claimed that at a June 2015 daily work meeting, S2 announced
Complainant’s bidding selection to everyone before the close of bidding to warn the employees
that she was going to work with them on the machine side of operations. Complainant alleged that
S2 told employees to look out and that they should be sure to wear protective equipment as
Complainant “would be watching.” Complainant stated that someone informed her about the
incident and snide remarks, and that she spoke up in her defense the next day.

The Acting Plant Manager (APM) affirmed that Complainant had problems getting along with
coworkers and that Complainant had told management multiple times there were certain
employees she did not wish to work with, and this made her a difficult person to work with. APM
added that Complainant had been assigned to many different areas within the facility and had
contended that she could not work with certain employees in each of these areas.

Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and
issued a summary judgment decision on June 13, 2018. In the decision, the AJ found that the
alleged incidents were insufficiently severe or pervasive to establish a hostile work environment.
Further, the AJ concluded that there was no evidence that the conduct at issue was based on
Complainant’s prior protected activity. As a result, the AJ found that Complainant had not been
subjected to reprisal or a hostile work environment as alleged.

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

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ did not give sufficient attention to her case because she
erroneously included paperwork from another case when she mailed Complainant her decision.
Further, Complainant contends that the AJ failed to properly analyze her hostile work environment
claim. Complainant further objects to the AJ’s citation of her prior EEO complaints and
characterization of her arguments as self-serving. Complainant believes that the AJ may have
prejudged and had a “preconceived personal opinion” of her case.
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Complainant attempts to draw a connection between her participation in mediation for another
EEO complaint and the AJ’s issuance of the summary judgment because both occurred on the
same day. 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. The
Commission finds that the AJ properly issued summary judgment as the material facts are
undisputed.

We first address Complainant’s arguments regarding the AJ on appeal. We find that the AJ’s
attachment of paperwork related to another complaint constituted harmless error in this case.
Although Complainant contends that the AJ’s actions show insufficient attention to her matter,
Complainant does not provide evidence as to how her case was adversely affected. Further,
regarding Complainant’s claim that the AJ exhibited bias against her, the Commission is unable to
find any evidence of bias, or other reversible error, resulting from the manner in which the AJ
managed and adjudicated this case. The AJ’s reference to the Complainant’s statements as “self-
serving” is not evidence of bias.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We have carefully reviewed the record and find that it was adequately developed. To successfully
oppose summary judgment, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Upon review of the record, we
find that the AJ properly construed the facts in Complainant’s favor and appropriately determined
that there were no genuine issues of material facts in dispute.

Hostile Work Environment

To establish a claim of discriminatory hostile environment harassment, 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; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).

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In short, 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, because her prior protected EEO
activity. Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile
work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids
“only behavior so objectively offensive as to alter the conditions of the victim's employment.”
Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, the Commission finds that Complainant failed to show that the Agency's
actions were based on retaliatory animus. The record reflects that the alleged incidents were more
likely the result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. Notably, APM averred that Complainant has been rotated to several different
departments and still had issues with getting along with co-workers in each department.

Regarding Claim (1), Complainant insists that she reported CW1’s conduct toward her to Agency
management. The Agency does not dispute this assertion, but rather contends that the Agency
investigated the allegation and found no evidence of harassment or physical contact. With respect
to Claim (2), CW1 was concerned about a potential safety issue and questioned whether
Complainant had installed a battery properly since the battery weighed over a 1,000 pounds and
needed to be installed securely to ensure no one was injured. As to Claim (3), MMO averred that
she was upset at Complainant’s supervisor for not prioritizing Complainant’s assignments
appropriately. With regard to Claim (4), there is no corroborating evidence that this incident
occurred. Further, there is no evidence that Complainant reported this incident to management.
Finally, as to Claim (5), while witnesses support Complainant’s version of this incident, there is
no record evidence demonstrating that this comment was uttered based on Complainant’s prior
protected EEO activity.

Complainant has not shown that she was subjected to a retaliatory hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that, as discussed above, Complainant has not proffered any evidence from
which a reasonable fact finder could conclude that the Agency's explanation for its actions was
pretext for reprisal. As a result, the Commission finds no basis to disturb the AJ’s summary
judgment decision finding that Complainant was not subjected to reprisal or a hostile work
environment as alleged.

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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.

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
(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.
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“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

October 29, 2019
Date