Lois G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120170673 (E.E.O.C. Oct. 18, 2018)

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

Lois G.,1
Complainant,

v.

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

Appeal No. 0120170673

Agency No. 4J-630-0102-15

DECISION

On December 7, 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
November 1, 2016, final decision 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 decision which found that Complainant did not demonstrate that she was
subjected to reprisal and/or harassment.

ISSUE PRESENTED

The issue presented in this case is whether the Agency’s final decision (FAD) erred when it
determined that Complainant did not demonstrate that based on her prior EEO activity she was
subjected to harassment and unfair working conditions.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time Sales,
Service and Distribution Associate at the Main Post Office in Columbia, Missouri.

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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On October 19, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her
to discriminatory harassment because of reprisal for engaging in prior protected EEO activity
when:

1. On July 11, 2015, her start time was charged by 1 ½ hours;
2. On a date to be specified, she was issued a Notice of Suspension of 14 days, dated July
29, 2015;
3. On October 17, 2015, and ongoing she was denied overtime;
4. On December 30, 2015, she was sent home;
5. On a date to be specified, her supervisor stated that she took too long to get to the
window, told her she was going to follow her around all day, then sent her to the office;
6. On dates to be specified, she was not allowed to write statements “on the clock” as her
coworkers were; and
7. On or around January 28, 2016, she was issued a Notice of Suspension of 14-days.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. 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.

Specifically, the FAD found that Complainant did not establish a prima facie case of discrimination
because there was more than three months between the incidents and her prior EEO activity.
Moreover, not all the supervisors were aware of her prior EEO activity. Notwithstanding, the
Agency found that even assuming, arguendo, Complainant established a prima facie case of
reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. With respect to claim no.1, the Agency indicated that Complainant’s hours were changed
for the needs of the service. Complainant’s schedule was changed by 1 ½ hours so that she would
be available during the busy period. With regard to claims nos. 2, 4, and 7, the Agency indicated
that Complainant was issued the first Notice of Suspension for being involved in a loud verbal
confrontation with another employee on the workroom floor near the customer lobby.
Complainant was sent home, on December 30, 2015, for verbally threatening the Acting
Supervisor. She was also issued a Notice of Suspension on January 28, 2016, regarding this matter.

Regarding claim no. 3, management indicated that Complainant was not denied overtime. The
Agency maintained that Complainant was on the overtime list and was afforded the same ability
to waive her lunch hour as every other qualified window clerk. With regard to claim no. 5,
management maintained that no one ever told Complainant that she took too long, or that someone
was going to follow her around.

2 Complainant’s complaint initially contained two other claims. The claims were dismissed by the
Agency for failing to state a claim and untimeliness. Complainant does not dispute these claims
on appeal, so they will not be addressed in this decision.
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And, finally with regard to claim no. 6, management explained that Complainant was not told that
she could not write statements on the clock, she was however told, that she could not take notes
on the clock because she spent a lot of time writing notes on everything and everyone. The Agency
maintained that it articulated, legitimate, nondiscriminatory reasons for its actions and that
Complainant failed to demonstrate that the articulated reasons were pretext for discrimination.

Further, the Agency also maintained that Complainant did not demonstrate that she was subjected
to harassment because the incidents complained of were work related incidents, primarily based
on Complainant’s work place behavior, and were not severe or pervasive enough to establish a
hostile work environment.
CONTENTIONS ON APPEAL

On appeal, Complainant reiterates the claims and arguments that were set forth during the
investigation. The Agency requests that its FAD be affirmed.

ANALYSIS AND FINDINGS

Standard of Review

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”).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo, that Complainant
established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory
reasons for its actions as listed above and Complainant did not demonstrate that the reasons were
pretext for discrimination. Further, with respect to Complainant’s contentions on appeal, we find
that other than her conclusory statements, she has not provided any evidence which demonstrates
that reprisal or discriminatory animus was involved in the Agency’s actions. Finally, we note that
a finding of a hostile work environment is precluded by our determination that Complainant failed
to establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not demonstrate
that she was subjected to discrimination or harassment as she alleged.

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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. “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.
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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 18, 2018
Date