Lyda F., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

May 18, 2017

0120150787 (E.E.O.C. May. 18, 2017)

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

Lyda F.,
Complainant,

v.

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

Appeal No. 0120150787

Agency No. 4F-913-0028-14

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November
21, 2014, 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.

BACKGROUND

Complainant worked as a City Carrier at the Post Office in Sherman Oaks, California. On April
15, 2014, she filed an EEO complaint in which she alleged that two Customer Service
Supervisors, both of whom served sequentially as Complainant’s first-line supervisor (S1a &
S1b) and the Customer Services Manager (S2) discriminated against her on the bases of race
(African-American), sex (female), and in reprisal for the instant EEO complaint as follows:

1. Since December 13, 2013, S2 subjected her to unwelcome sexual behavior.

2. On January 17, 2014, S1a issued her a 7-day suspension, with S2’s concurrence.

3. On March 8, 2014, S1b issued her a 7-day suspension, with S2’s concurrence.

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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The Agency investigated the complaint and provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

Incident (1): Complainant averred that S1a came to her route while she was out making
deliveries, parked his car behind her vehicle, and scrutinized her very closely. She also averred
that while she was still at the office, S1a came up behind her while she was casing mail and got
very close to her. IR 57. S1a responded that he scrutinized Complainant’s performance more
closely than he scrutinized that of other employees because her delivery route was among the
worst-performing in the office, and that he observed her work both in the office and on the street.
IR 81. S2 stated that S1a’s observations of Complainant’s work both in and out of the office
were part of his normal supervisory responsibilities and that closer monitoring of Complainant’s
performance was necessary due to the large variances in Complainant’s delivery times. IR 91-
92. S2 also averred that Complainant never alerted anyone regarding her claim of unwelcome
sexual behavior on the part of S1a, and that a Labor Relations Representative had investigated
the matter between February 26 and March 20, 2014, and had found no evidence of inappropriate
behavior on the part of S1a. IR 100-01.

Incident (2): In a notice dated January 15, 2014, S1a informed Complainant that she would be
given a seven-day no-time-off suspension for failure to follow instructions. The notice set forth
two charges. The first charge was for Complainant’s failure to scan five packages for delivery
while the second charge was for her failure to call into the office after being explicitly instructed
to do so. In deciding to issue the 7-day suspension, S1a had cited previous letters of warning that
Complainant had received on September 4, October 10, and October 21, 2013 for similar
infractions. S2 had concurred with S1a’s decision to issue the suspension. IR 69-70, 82, 94. S2
averred that Complainant had been given refresher training on scanning procedures within the
previous 18 months as part of a prior grievance settlement on the disciplinary action in which
failure to scan was at issue. IR 95. Complainant grieved the suspension, which was reduced to a
letter of warning on February 4, 2014. IR 83, 96, 106, 116-17.

Incident (3): In a letter dated March 6, 2014, S1b notified Complainant that she would again be
issued a seven-day no-time-off suspension. This time, the charge specified in the notice was
irregular attendance. In issuing the suspension, S1b referenced six dates on which Complainant
was late in reporting to work or was using sick leave. He also cited the letter of warning that
Complainant received on September 4, 2013. S2 concurred with S1b’s decision to issue the
suspension. IR 71-72, 83-84, 96, 105. Complainant again filed a grievance, and this time the
grievance resulted in the suspension being reduced to three days. IR 84, 98, 118.

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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”).

We first address Complainant’s claim of discriminatory harassment. Harassment of employees
that would not occur but for their membership in statutorily protected groups is unlawful if
sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No.
01972699 (August 14, 1998). To establish a claim of 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 classes; (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).

S1a stated under oath that it was part of his day-to-day responsibilities as a supervisor to monitor
the performance of his subordinates, both within and outside of the office, and that
Complainant’s less-than-stellar performance required him to monitor her performance more
frequently and more closely than that of other carriers. S2 had averred that a staff member from
the Office of Labor Relations had investigated Complainant’s sexual harassment charge and
found no evidence that S1a had sexually harassed Complainant or had otherwise engaged in
inappropriate behavior. Complainant herself did not present any affidavits, declarations, sworn
statements or unsworn statements from any witness other than herself, nor documents which
contradict the explanation for monitoring Complainant’s job performance provided by S1a and
S2 or which calls into question their veracity as witnesses. Since Complainant failed to establish
the existence of a discriminatory or retaliatory motive on the part of S1a no further inquiry is
necessary as to whether she meets the fourth or fifth prongs. See Nicki D. v. Dept. of Veterans
Affairs, EEOC Appeal No. 0120133247 (Oct. 15, 2015) (If complainant fails to establish the
existence of a discriminatory motive on the part of S1 or S2, no further inquiry would be
necessary as to whether the incidents complained of rise to the level of harassment).

The Commission cannot second-guess an Agency’s decisions involving personnel unless there is
evidence of a discriminatory motivation on the part of the officials responsible for making those
decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Therefore, in order to prevail on her disparate treatment claim, Complainant would have to
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prove, by a preponderance of the evidence, that S1a, S1b, or S2 were motivated by unlawful
considerations of her race, gender, or EEO activity when they made the decision to suspend her
on January 17 and March 8, 2014. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 143 (2000).

In the absence of direct evidence, Complainant can establish the existence of an unlawful motive
by satisfying the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 & n. 13 (1973). She must initially establish a prima
facie case by demonstrating that she was subjected to adverse employment actions under
circumstances that would support an inference of discriminatory motive. Furnco Constr. Co. v.
Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Burdine, supra at 253. To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
articulated reason is a pretext, i.e., not the real reason but rather a cover for discrimination. St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

The prima facie inquiry in this case can be dispensed with, since the Agency articulated
legitimate and nondiscriminatory reasons for their actions. See United Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). The reasons for the two suspensions, as
articulated by S1a and S1b in their respective notices, include documented instances of failure to
follow supervisory instructions and irregular attendance. These reasons are supported by the
affidavit testimony both supervisors, and of S2, who concurred in both actions.

Complainant must now demonstrate pretext, and can do so by showing such weaknesses,
inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that
a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S.
Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration
denied, EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include
discriminatory statements or past personal treatment attributable to those responsible for the
personnel action that led to the filing of the complaint, comparative or statistical data revealing
differences in treatment across various protected-group lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC
Appeal No. 0120141697 (Nov. 12, 2015).

When asked by the EEO investigator why she believed that S1a’s decision to issue the January
suspension was based on her race, sex, and EEO activity, Complainant responded that she
opposed having to perform duties that she believed would jeopardize her health and safety, that
management tried to keep her in her place as an African-American, and that S1a was trying to
discredit her by criticizing her job performance. IR 60-61. When asked the same question
regarding S1b’s issuance of the March suspension, she responded that two male carriers who had
taken sick leave were not suspended and that the suspension was issued at approximately the
same time she had entered mediation for her EEO complaint. IR 64-65. S1b stated that he relied
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upon Section 665.41 of the Agency’s Employee and Labor Relations Manual, which specifies
that failure to be regular in attendance can result in disciplinary action, up to and including
removal. IR 105, 158. S1a had issued a 14-day suspension to a white male carrier for irregular
attendance for taking 8 hours of sick leave on February 24, 2014, and for taking another 8 hours
of sick leave on March 20, 2014. IR 2014. IR 138. As with her harassment claim, Complainant
failed to submit any evidence beyond her own assertions that conflicts with the explanations
given by S1a or S1b, or that tends to undermine their veracity as witnesses. As Complainant did
not request a hearing before a Commission AJ, we do not have the benefit of credibility and
factual determinations made by an AJ which may have aided Complainant in establishing her
claim. We therefore agree with the Agency that Complainant failed to establish the existence of
a discriminatory or retaliatory motive on the part of S1a, S1b, or S2 in connection with any of the
incidents comprising her claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against as alleged.

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:
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.

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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 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

May 18, 2017
Date