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

Equal Employment Opportunity Commission

Aug 27, 2019

0120181415 (E.E.O.C. Aug. 27, 2019)

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

Marielle L.,1
Complainant,

v.

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

Appeal No. 0120181415

Agency No. 1G-336-0057-17

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 7, 2018, 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.

ISSUE PRESENTED

The issue is whether Complainant established that the Agency discriminated against, and
harassed, her based on race, color, or sex, or in retaliation for prior EEO activity when it changed
her work schedule; issued her a Letter of Warning; issued her a Proposed Letter of Warning; and
changed her supervisor to a management official, whom she alleged called her a racial slur.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Distributions Operations at the Agency’s Ybor City Processing and Distribution Center in Ybor,
Florida.

On January 21, 2017, Complainant reported to work and learned that her schedule was changed
without prior notice. Her work schedule was changed from 5:00 p.m. to 1:30 a.m., with Monday
and Tuesday off, to 12:30 a.m. to 9:00 a.m., with Wednesday and Thursday off. Complainant
stated that she was now being supervised by a supervisor (S1) (white, Caucasian, male), who had
previously called her a racial slur.2 Report of Investigation (ROI) at 103.

On January 28, 2017, Complainant met with S1 and her second line supervisor (S2) (white,
Caucasian, female), for an investigative interview for unsatisfactory performance. Complainant
was asked why she shut down a machine during a break, despite being instructed not to shut it
down. Complainant was also asked why she did not report to work on January 9, 2017, after
receiving an email on January 5, 2017, notifying her of the schedule change. Complainant
responded that she did not recall. ROI at 353.

On February 9, 2017, S1 issued Complainant a Letter of Warning (LOW), in lieu of a seven-
calendar-day suspension, for unsatisfactory performance. S1 stated that Complainant was
instructed on numerous occasions not to shut down the machine during breaks, but she chose to
shut it down without permission. S1 noted that, when he asked Complainant why she shut down
the machine, she stated that she only had seven employees working at the time, which was not
true. Additionally, Complainant was provided with the schedule for the upcoming week on
January 5, 2017. S1 stated that Complainant chose not to follow it, and she chose to be absent
without leave (AWOL) on January 9, 2017. ROI at 354-55.

On May 10, 2017, S1 issued Complainant a Proposed Letter of Warning in Lieu of Time-Off
Suspension for Unacceptable Conduct/Insubordination. S1 noted that, on two separate occasions,
he gave Complainant copies of her absence slips and asked that she review, sign, and return them
to him. When S1 requested that Complainant return the forms, she became agitated and
responded that S1 should contact the attendance-control supervisor. S1 stated that he gave
Complainant an opportunity to explain why she did not follow his direct instructions, and
Complainant did not provide an acceptable explanation. ROI at 358-60.

On May 22, 2017, the Agency informed Complainant that it had completed its internal
investigation into her allegation of a hostile work environment. The Agency found that S1’s
actions were consistent with the Employee Labor Manual when he issued corrective action to
Complainant and that Complainant’s schedule was changed due to recent changes in
management and staffing. ROI at 365-72.

2 Complainant stated that S1 became her supervisor on January 21, 2017, and that he had called
her the N-word in December 2015. ROI at 361,375.
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On August 9, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against, and harassed her, on the bases of race (African-American), sex (female, sexual
orientation), and color (black), and in reprisal for prior protected EEO activity under Title VII
when:

1. on January 21, 2017, her schedule was changed;

2. on February 9, 2017, she was issued a LOW;

3. on May 10, 2017, she was issued a Proposed LOW; and

4. beginning on an unspecified date, she was supervised by S1, who she alleged
called her a racial slur.3

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
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). Therein, the Agency concluded that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.

As an initial matter, the Agency noted that Complainant did not complete an affidavit in support
of her complaint, and that the information about her claims was taken from her formal complaint
and other documents in the record. The Agency also noted that claims 2 and 3 were also
independent claims, outside of her harassment claim, but that claim 1 was raised in an untimely
fashion.

The Agency determined that Complainant had not established a prima facie case of
discrimination based on her color, race, or sex, or in reprisal for prior EEO activity for claims 2
and 3. However, assuming for the sake of argument that Complainant had established a prima
facie case of discrimination, the Agency found that the management officials articulated
legitimate, nondiscriminatory reasons for their actions. For claim 2, S1 stated that he issued the
LOW because Complainant failed to follow procedures, provided incorrect and misleading
information to management, and was AWOL. Regarding claim 3, S1 stated that he issued the
Proposed LOW because Complainant intentionally destroyed Agency property, failed to follow
instructions, and was insubordinate.

The Agency then found that Complainant had not established that the reasons were pretext for
discrimination because she did not provide any evidence that her managers’ actions were based
on her color, race, or sex, or in reprisal for her prior EEO activity.

3 The Agency informed Complainant that it reviewed her complaint, which covered a period of
one and one-half years, and it accepted the above claims. ROI at 218-21.
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For Complainant’s harassment claim, the Agency found that Complainant had not shown that
incidents 1 or 4 were based on her protected categories. The Agency also found that Complainant
had not established that she was subjected to severe or pervasive conduct that created a hostile,
abusive, or offensive work environment, or unreasonably interfered with her work performance.
The Agency concluded that the evidence did not support a finding that Complainant was
discriminated against as alleged.

CONTENTIONS ON APPEAL

Complainant filed the instant appeal and submitted a brief in support of her appeal on April 27,
2018. She also submitted additional documents from July 2018 through April 2019, including
her completed affidavit, dated April 6, 2019. On appeal, through her non-attorney representative,
Complainant argues that the Agency’s final decision should be vacated for the “intentional
omission of ongoing ‘Hostile Work Environment/Malicious Intent,’ which contravened
Complainant’s Due Process Rights to Reasonable Notice and the Opportunity to be Heard under
the Fourteenth Amendment of the United States Constitution.”

The Agency did not submit a response to Complainant’s appeal.

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 (EEO MD-110), at Chap. 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”).

Complainant’s Brief and Supporting Documents

As an initial matter, we find that Complainant’s appellate brief is untimely. The Commission's
regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the
appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice
of appeal.” 29 C.F.R. §1614.403(d). In this case, Complainant filed her appeal on March 2, 2018,
and submitted her brief on April 27, 2018, which is past the 30-day deadline. As such, we will
not consider Complainant’s arguments on appeal.

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Additionally, as a general rule, no new evidence will be considered on appeal unless there is an
affirmative showing that the evidence was not reasonably available prior to, or during, the
investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant provided her
completed affidavit on April 6, 2019, over a year after filing her appeal, and she did not provide
any explanation as to why she did not provide this, or her other supporting documents, during the
investigative stage. We also find that Complainant submitted documents that are not related to
the accepted claims in this complaint. For example, she provided documentation regarding her
subsequent removal from the Agency.4 Accordingly, the Commission declines to consider these
additional documents on appeal.

Procedural Dismissal

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when
the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). In this case, Complainant alleged that she was
discriminated against when her work schedule was changed on January 21, 2017, and her
deadline to contact an EEO counselor was March 7, 2017. Complainant contacted an EEO
counselor on March 9, 2017. ROI at 202. As such, we find that claim 1 was properly dismissed
as untimely.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For Complainant to prevail, she must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).

4 Complainant submitted a copy of an initial decision of the Merit Systems Protection Board
(MSPB), which became final on March 29, 2019, affirming her removal from the Agency.
Complainant, who submitted the document in connection with the instant appeal, did not request
Commission review of the MSPB decision. To the extent that Complainant wishes to file a
petition for review of the MSPB decision, she should do so pursuant to the instructions in the
MSPB decision. See 29 C.F.R. § 1614.303.
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If the Agency is successful, the burden reverts back to Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason for its action was a pretext for
discrimination. At all times, Complainant retains the burden of persuasion, and it is her
obligation to show by a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v.
Aikens, 460 U.S. 711, 715-16 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
color, race, or sex, or in reprisal for prior EEO activity, we find that S1 provided legitimate,
nondiscriminatory reasons for claims 2 and 3, described above. We also find that Complainant
did not show that the reasons were pretext for discrimination. Complainant can establish pretext
in two ways: “(1) indirectly, by showing that the employer's proffered explanation is unworthy of
credence because it is internally inconsistent or otherwise not believable, or (2) directly, by
showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of
Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted);
see also McDonnell Douglas, 411 U.S. at 804-05. Complainant made bare assertions that
management officials discriminated against her based on her color, race, or sex, or in reprisal for
prior EEO activity, which are insufficient to prove pretext, or that their actions were
discriminatory. As such, we find that Complainant has not established that the Agency
discriminated against her when it issued her a LOW on February 9, 2017, and a proposed LOW
on May 10, 2017.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant's employment. See Enforcement Guidance on Harris v.
Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of
harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had
the purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

We find that Complainant belongs to statutorily protected classes, and that she was subjected to
unwelcome verbal conduct. However, we find that she has not shown that the complained of
conduct was based on any of her protected classes. While we note that Complainant did not
provide a sworn affidavit during the EEO investigation, the record contains a sworn statement
from Complainant for the Agency’s internal investigation into her allegation of a hostile work
environment. Complainant stated that S1 and S2 were “racist,” and that they “engage in white
supremacy acts.” ROI at 375. In support of Complainant’s assertions, she provided a statement
from a witness, who noted that he heard S2 say that Complainant “will not be in charge of the
MHA’s any longer and may not be a supervisor either.” ROI at 376.
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We do not find that this witness statement, or any other evidence in the record, shows that either
S1, or S2, was motivated by any of Complainant’s protected categories. Additionally, we find
that there is no evidence in the record to support Complainant’s assertion that S1 previously
called her a racial slur. Accordingly, we find that Complainant has not shown that she was
subjected to a hostile work environment based on her color, race, or sex, or in reprisal for prior
EEO activity.

CONCLUSION

We find that Complainant has not established that the Agency discriminated against, or harassed,
her based on color, race, or sex, or in reprisal for prior EEO activity, when it changed her work
schedule; issued her a LOW; issued her a Proposed LOW; and changed her supervisor to S1,
whom she alleged called her a racial slur. Therefore, 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 decision.

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.
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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

August 27, 2019
Date