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

Equal Employment Opportunity Commission

Sep 22, 2016

0120150167 (E.E.O.C. Sep. 22, 2016)

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
(Southern Area),
Agency.

Appeal No. 0120150167

Hearing No. 460-2013-00013X

Agency No. 4G-770-0061-12

DECISION

The Commission accepts Complainant’s appeal from the Agency’s September 18, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. 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 Rural Carrier at
the Agency’s Missouri City Annex in Missouri City, Texas. In Complainant’s unit, carriers
were instructed to deliver all mail daily. Further, carriers were instructed to wait for and pull
the Dispatch of Value (DOV) in their route’s case before leaving for their routes. When
carriers made their final pull of mail, they inserted a "hot case" card into the hot case to
indicate the pull was made. Occasionally, management authorized some carriers to leave prior

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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to the DOV due to operational needs, but carriers were still required to take all available mail
out for delivery.

On December 13, 2011, Complainant failed to pull and deliver mail from her hot case.
Management discovered approximately 60 - 70 pieces of mail that had been left in
Complainant's case after she left to deliver her route. Complainant had not received
authorization from management to leave this mail and did not inform management that the mail
would not be delivered. When the Station Manager (M1) questioned Complainant about the
mail, Complainant acknowledged that she was aware that the mail was available for delivery
and explained that she would have returned from the route later if she had taken it.
Additionally, Complainant had placed the hot case card in her case indicating that all mail was
out for delivery. M1 held an investigative interview with Complainant that same day and
subsequently put her on emergency placement in an off-duty status for failing to deliver and
delaying approximately 60 – 70 pieces of mail, particularly during the high-volume Christmas
delivery time.

Complainant subsequently returned to work. On January 5, 2012, M1 issued Complainant a
Notice of 14-Day Suspension for unsatisfactory work performance and delay of mail for her
conduct on December 13, 2011. The suspension and emergency placement were later reduced
to a time-served suspension.

Complainant was previously counseled and disciplined for unscheduled absences, including
being issued a Seven-Day Suspension in February 2010. Management reviewed Complainant’s
attendance record following the suspension and discovered that Complainant had since incurred
112 hours of unscheduled leave. Management held an investigative interview with
Complainant concerning her attendance. Complainant claimed that the absences were health-
related for her and family. Management had previously provided Complainant Family Medical
Leave Act (FMLA) paperwork for her submission; however, Complainant failed to submit any
documentation. As a result, on December 24, 2011, Complainant was issued a Notice of 14-
Day “Paper” Suspension for failure to maintain regular attendance. The discipline was later
reduced to a 7-Day Suspension.

Complainant claimed that she requested permission to work at 6:30 a.m., to have additional
time to return from delivering her route before 5:00 p.m. Management denied the request due
to operational needs. Nevertheless, management allowed Complainant to report earlier than
her 7:30 a.m. report time on several occasions.

On April 2, 2012 (and amended on May 24, 2012), Complainant filed a formal complaint
alleging that the Agency discriminated against her on the bases of race (African-American),
sex (female), color (Black), disability, age (52), and in reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, on December 12, 2011, she
was put off the clock; on December 24, 2011, she was issued a 14-Day (Paper) Suspension; on
January 5, 2012, she was issued a 14-Day (Paper) Suspension; she was subjected to continuous
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ridicule and comments on the workroom floor by management; and on unspecified dates, she
was not allowed to start work prior to 7:00 a.m.

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 September 2, 2014.

In the decision, the AJ determined that the alleged conduct was not sufficiently severe or
pervasive to establish a hostile work environment. Additionally, the AJ found that there was
no evidence that the alleged incidents were based on Complainant’s protected classes.
Specifically, with respect to her emergency placement in off-duty status and suspension,
Complainant admitted in a statement that she left mail after the DOV at 3:10 p.m. instead of
“taking it for a ride.” Nevertheless, Complainant argued that "someone else" placed mail in
her hot case after departure. The Agency reasoned that it was justified in placing Complainant
off the clock and issuing discipline as a result of the extensive mail delay caused during the
holiday season. Next, regarding the second suspension, Complainant was issued a Notice of
14-Day Suspension as progressive discipline for 112 hours of unscheduled leave since her prior
disciplinary action for attendance. As to her request for an earlier report time, Agency
management denied it because it did not meet the procedural needs of the Postal Service.

Finally, regarding her claim that she was subjected to continuous ridicule and comments on the
workroom floor, the AJ determined that the record showed that Complainant had performance
problems and her performance was addressed individually with her in the supervisor’s office.
Management may ask a carrier questions at their case if they notice an issue, but this occurred
with all carriers and was not exclusive to Complainant.

The AJ concluded that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. Complainant filed the instant appeal
without submitting any arguments or contentions in support.

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.

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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
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 her protected classes. 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. 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. For example, Complainant was
placed off the clock and subsequently issued a 14-Day Suspension for intentionally delaying
approximately 60 pieces of mail and failing to follow standing instructions. ROI, at 224, 226.
M1 stated that he placed Complainant off the clock because there was a concern that
Complainant posed a threat to the mail entrusted in her care daily. Id. at 231. Complainant
claimed that another employee had placed mail in the hot case after the DOV was called and
prior to her leaving for her route. M1 conducted an investigation, but found no evidence to
support Complainant’s claims. Id. at 226. M1 stated that Complainant chose to ignore the
mail and place her hot case card on top of the mail and leave the office. Id. Complainant
admitted she ignored the mail and told M1 that she knew she could not get it all delivered. Id.
As Complainant had been previously counseled and disciplined previously, M1 issued her a
Notice of 14-Day Paper Suspension for unsatisfactory work performance and intentional and
willful delay of mail. Id. at 293. The matter was later settled as a time-served suspension.
Id. at 129-30.

With respect to the December 24, 2011 14-Day Paper Suspension, M1 confirmed that
Complainant had accumulated multiple instances of unscheduled leave. ROI, at 286.
Complainant had previously been counseled and disciplined regarding her excessive
unscheduled absences. Id. at 227. Based on progressive discipline, M1 issued Complainant
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the 14-Day Paper Suspension for failure to maintain regular attendance. Id. at 228, 286-89.
The discipline was later reduced to a Seven-Day Suspension. Id. at 230.
.
As to her claim that she was subjected to ridicule and comments on the workroom floor, M1
confirmed that Complainant had performance deficiencies; however, discussions regarding her
problems and disciplinary issues took place in the office. ROI, at 241. M1 noted that
management may ask a carrier questions about an issue, but this occurs with all carriers not
just Complainant. Id. M1 denied that Complainant was ridiculed; rather, her performance
was addressed as needed when appropriate. Id. at 242.

Finally, with respect to her earlier report time request, M1 stressed that no carrier had a
regular reporting time earlier than 7:30 a.m. ROI, at 245. In some instances, management
may authorize a carrier or carriers to report early for personal reasons or when there is heavy
mail volume; however, no carriers were allowed to report early without authorization. Id.
M1 noted that Complainant had multiple problems with her performance other than returning
after 5:00 p.m.; therefore, reporting earlier would not have resolved the issue. Id.

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.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency's explanation was pretext for discrimination or
reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment
decision finding that Complainant was not subjected to discrimination, reprisal, 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 (M0416)

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:

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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. The requests 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 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. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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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

September 22, 2016
Date