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

Equal Employment Opportunity Commission

Sep 11, 2018

0120161942 (E.E.O.C. Sep. 11, 2018)

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

Natalya B.,1
Complainant,

v.

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

Appeal No. 0120161942

Agency No. 4G-780-0245-15

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the April 29, 2016 final agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible
(PTF) Sales, Services/Distribution Associate, PS-06, at the Agency’s Post Office in Pecos,
Texas. As a PTF employee, Complainant did not have a bid job and was assigned daily duties.
Complainant claimed that while assigned to the Pecos Post Office, she felt overwhelmed,
exhausted, and tense. Complainant alleged that the Postmaster issued her numerous assignments
and made it impossible for her to successfully complete her duties by requesting that everything
be done at the same time and completed by the end of the day. For example, Complainant
claimed that the Postmaster assigned her WebBats audits2, P.O. box section duties, morning

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.
2 The record indicates that WebBats is a web-based application used to manage P.O. boxes.
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reports, and a carrier route simultaneously. Complainant claimed that her health suffered as a
result of the stress.

On July 28, 2015, Complainant and a supervisor (S1) were having a conversation in Spanish.
The Postmaster approached them and told them that they needed to stop speaking Spanish.
Complainant and S1 believed that the Postmaster was joking, and continued their conversation in
Spanish. Later that morning, the Postmaster held a stand-up talk with employees and informed
them that they were not allowed to speak Spanish in the office. The incident was reported to the
Operations Manager (M1) and a management inquiry was initiated on July 30, 2015. Upper
management determined that the Postmaster had acted inappropriately by telling employees that
they could not speak Spanish. The Postmaster was subsequently removed and instructed to have
no contact with the Pecos Post Office employees. Management held a talk with employees to
stress that the Agency did not support or believe in the statement made by the Postmaster.

On October 29, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
race/national origin (Hispanic)3 when:

1. Beginning on an unspecified date and continuing, she was constantly given new
tasks in addition to her regular duties and expected to complete them that same
day; and

2. On July 28, 2015, her Postmaster instructed her to stop speaking Spanish.

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 EEOC
Administrative Judge (AJ).4 When Complainant did not respond within the timeframe provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the conduct at issue was based on discriminatory animus. With respect to the
assignments, the Agency found that there was no evidence that the Postmaster gave Complainant
unusual deadlines or assigned her tasks above and beyond her regular duties. Further,
Complainant’s supervisor (S1) noted that Complainant, as a PTF employee, did not have a bid

3 The Commission notes that Complainant stated that her race is “Hispanic.” The Commission
considers the term “Hispanic” to denote a national origin rather than a race. Nonetheless, claims
of race discrimination are analyzed under the same framework as claims of national origin
discrimination.
4 Complainant did not submit an affidavit during the investigation. The Postmaster was on
extended administrative leave during the investigation and did not submit an affidavit. The EEO
Investigator noted that the request for an affidavit sent to the Postmaster was returned as
undeliverable because the “addressee moved and left no forwarding address.”
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job. S1 added that Complainant never understood the purpose or function of a PTF, but that she
did not have any duties other than what was assigned to her on any given day. S1 affirmed that
Complainant’s assigned duties were the same as the other clerks and all of the clerks operated
under the same time constraints.

As to the Postmaster’s comments, the Agency determined that Complainant did not establish that
the Postmaster’s instructions were motivated by discrimination. Nonetheless, even assuming
that Complainant had established that the Postmaster’s comments constituted discriminatory
harassment, management promptly took corrective action by removing him from the station and
not allowing him to return. Furthermore, the Agency noted that the employees were reassured
that management did not support the Postmaster’s conduct. Thus, the Agency found that there
was no basis to impute liability. Accordingly, the Agency concluded that Complainant’s hostile
work environment claim failed. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS

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 race or national origin. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission notes that Complainant chose not to request a hearing; therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her race and/or national origin, management officials
subjected her to a hostile work environment. Complainant alleged several incidents of what she
believed to be discriminatory harassment. Specific to the Postmaster’s directive, the
Commission stresses that EEOC guidelines on English-only rules, found at 29 C.F.R. § 1606.7,
state that an employer may require that employees speak English at certain times in the
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workplace if the employer can show that the rule is justified by “business necessity” at those
times. 29 C.F.R. § 1606.7(b) (emphasis supplied). See generally, EEOC Enforcement Guidance
on National Origin Discrimination, Directive No. 915.005, (Nov. 18, 2016). Although there is
no dispute that Complainant and other employees were instructed by the Postmaster to not speak
Spanish in the workplace, Complainant did not present sufficient evidence to prove that this
occurrence, together with the other incidents alleged, was sufficiently severe or pervasive to
establish a hostile work environment.

Furthermore, the Commission finds that the Postmaster’s instruction to the Pecos Post Office
employees to refrain from speaking Spanish was short-lived and the effects were, therefore, quite
limited and immediately corrected. Additionally, there is no evidence that Complainant or any
other employee was disciplined for speaking Spanish. The record shows that when upper
management officials learned that the Postmaster had unilaterally instructed employees to not
speak Spanish, the Agency officials immediately rescinded the instruction and removed the
Postmaster from the facility. ROI, at 92. In addition, management officials reassured employees
that the Agency did not condone or support the Postmaster’s statement. Id. Thus, under the
specific circumstances present, the Commission finds that the Agency took appropriate action to
fully and effectively correct the effects of the Postmaster’s inappropriate conduct. Accordingly,
the Commission finds no basis to impute liability to the Agency.

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 decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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;
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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.

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
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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

September 11, 2018
Date