Lynne E., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Mar 1, 2016

0120143250 (E.E.O.C. Mar. 1, 2016)

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

Lynne E.,
Complainant,

v.

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

Appeal No. 0120143250

Hearing No. 520-2012-00296X

Agency No. 4B-100-0098-11

DECISION

Complainant filed an appeal from the Agency’s August 27, 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. 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 General Clerk at the
Agency’s Bronx Vehicle Maintenance Facility (VMF) in New York, New York. In November
2010, the Transportation Department moved into the Bronx VMF building, which added an
additional 60 employees with personal vehicles and about 40 extra Postal vehicles and four
trailers. The parking lot was rearranged, and ten spots were reserved for administrative and
electric vehicles. Complainant’s supervisor (S1) informed employees that there were about
seven parking spots to be allocated on a first-come, first-served basis for employees; otherwise,
there was an unpaved area behind the building where employees could park their vehicles. On
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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various occasions in January and February 2011, Complainant was directed to move her car from
a prohibited area of the postal parking lot because she ignored the new parking policies.

Prior to S1 becoming Complainant’s supervisor, Complainant was in charge of paying and
reconciling bills submitted for payment to the facility. The Agency changed its procedures, and
Complainant became responsible for paying the bills and S1 reconciled the bills. In addition, S1
instituted a policy of paying the vendors when they came in rather than the current policy of
waiting to pay them on Fridays.

Complainant did not have to change into a uniform to perform her job, and her locker was
located in the filing room next to her office. S1 and another employee’s lockers were in the
ladies’ locker room because they needed to change into uniforms to perform their jobs. S1
arranged to have Complainant’s locker moved to the locker room because she wanted to bring
employee files into the file room and the only available spot was where Complainant’s locker
was located.

On May 20, 2011, Complainant went out on sick leave due to stress. On May 24, 2011, S1
advised Complainant that she needed to submit acceptable medical documentation in support of
her absence. Complainant submitted medical documentation stating that she could return to
work on May 31, 2011. Complainant continued to take sick leave, and, on June 6, 2011, S1
advised Complainant that she needed to submit acceptable documentation in support of her
continued sick leave absence. In addition, Complainant submitted a Federal Employees’
Compensation Act claim alleging that she sustained an emotional condition as a result of her
employment. The claim was denied on July 15, 2011, because the evidence was insufficient to
show that she sustained an injury.

On September 14, 2011, Complainant received a 60-day advance notice of her possible
involuntary reassignment from a full-time motor vehicle craft employee in the Bronx installation
due to the Agency’s consolidation of operations at the Bronx facility with the Morgan Processing
and Distribution Center. Management subsequently decided to close the Bronx VMF. On
October 24, 2011, Complainant was informed that her initial assignment would be as a General
Clerk at the Manhattan VMF, FDR Auxiliary VMF in New York, New York effective November
19, 2011. However, pursuant to the collective bargaining agreement, the new assignments were
posted for bid. Complainant’s initial assignment was successfully bid for by a more senior
employee. As a result, Complainant became an unassigned employee until she successfully bid
or was assigned to a full-time position.

On November 19, 2011, the Personnel Processing Specialist at the Human Resources Service
Center in Greensboro, North Carolina processed paperwork for four employees who were
reassigned to the Manhattan VMF. Due to an administrative error, Complainant’s pay was
changed in the system. After an investigation, the Personnel Processing Specialist fixed the
error, and the correction was processed on January 3, 2012.

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On October 3, 2011 (and amended on January 5, 2012), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of age (49) and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, S1 constantly instructed her to move her car
from the parking lot; in March 2011, S1 commented on the excessive amount of time that she
had recently taken off due to the passing of her mother and her son’s illness; S1 threatened to
issue her discipline, accused her of losing receipts, instructed her to pay an invoice without
following standard procedures, and yelled at her for going to the manager with her concerns
about the invoice; she was informed that her medical documentation was insufficient; she was
notified that she would be “unassigned” effective December 17, 2011; she became aware that her
paycheck for Pay Period 1, FY12 was incorrect due to a Form 50 being issued which erroneously
lowered her salary; and on June 2, 2011, she was informed that her supervisor had her locker
removed from her office and placed in a different location.2

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 August 13, 2014.

In the decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, Complainant failed to show that the
alleged conduct was based on her protected classes. For example, with regard to her claim that
she was told to move her car, management stated that Complainant was given these directions
because she continued to park her car in spaces that were reserved for administrative vehicles
and supervisors. Management held several service talks informing all employees where they
could park their personal vehicles, yet Complainant continuously disregarded these instructions.

As to her claim that she was told that her medical documentation was insufficient, the AJ
determined that Complainant mistakenly believed that she did not have to disclose information
from her doctor supporting her absence beyond “under my care” or “received treatment” based
on the Health Insurance Portability and Accountability Act (HIPAA). Therefore, Agency
management informed Complainant that her submitted medical documentation in support of her
extended absence was insufficient pursuant to the Employee and Labor Relations Manual.

Regarding her claim that her locker was moved from the filing room to the women’s locker
room, management explained that they needed the space in the filing room for employee files
and that the only spot available was where Complainant’s locker was located. Therefore, it was
within the Agency’s rights to move Complainant’s locker into the locker room where the other
female employees had their lockers.

2 Complainant amended her complaint to include reprisal as a basis of discrimination in her
affidavit submitted during the investigation.

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With respect to her “unassignment” and the error on the Form 50 that temporarily lowered her
salary, the AJ determined that Complainant failed to show that these occurrences were related to
her protected classes. In fact, when Complainant was asked if she believed that her
unassignment was based on her age, Complainant replied “I can’t say that honestly.” Further,
there was no evidence that S1 or any of the New York managers had any involvement in any of
these incidents.

The AJ concluded that Complainant failed to show that the Agency’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.

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 a protected basis (in this case, her age and prior protected
EEO activity). 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 age and prior
protected EEO activity, she was subjected to a hostile work environment as evidenced by

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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 discriminatory
or retaliatory animus. Finally, to the extent that Complainant is alleging disparate treatment with
respect to her claims, 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 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 (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.

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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

March 1, 2016
Date