Nicole T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jul 6, 2018

0120161768 (E.E.O.C. Jul. 6, 2018)

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

Nicole T.,1
Complainant,

v.

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

Appeal No. 0120161768

Agency No. 4E-640-0043-15

DECISION

On April 22, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 23, 2016, 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

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, 01/B,
at the Agency’s facility in Kansas City, Missouri.

On March 7, 2015, Complainant filed an EEO complaint, which was subsequently amended,
alleging that the Agency discriminated against her and subjected her to harassment on the basis
of sex (female) when:

1. On various dates since September 2014, and ongoing, management has followed
Complainant on her delivery route and failed to provide her with paperwork to
that effect;

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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2. On December 11, 2014, Complainant received a letter of warning;
3. On December 20, 2014, management did not allow Complainant to drive the
postal van assigned to her delivery route;
4. On January 7, 2015, Complainant was denied leave and charged with eight hours
leave without pay (LWOP);
5. On January 28-29, 2015, Complainant’s request for sick leave was denied;
6. On February 24, 2015, Complainant was issued disciplinary action;
7. Complainant noticed “smart” remarks on Forms 3996, in that she has been
pressured to hurry up, questioned frequently about her job, yelled at, warned
about numbering her parcels in the office, and another carrier cased her route;
8. Complainant was mandated to work overtime; and
9. Complainant’s supervisor denied her request to meet with her shop steward.

Complainant alleged discriminatory harassment in retaliation for EEO activity when:

10. On April 22, 2015, Complainant became aware that her transfer request to Dallas,
Texas was denied; and
11. On June 29, 2015, management did not follow correct procedures and harassed
Complainant by taunting her for being unable to lift a very heavy parcel that was
assigned to her route for delivery.

On June 24, 2015, the Agency dismissed claim (9) for raising a collateral attack on the collective
bargaining agreement. The Agency stated the proper forum for Complainant to raise this
challenge is through the collective bargaining agreement. The Agency accepted the remaining
claims for further processing.

At the conclusion of the investigation of the accepted claims, the Agency provided Complainant
with a copy of the report of investigation 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 Agency’s decision concluded
that Complainant failed to prove that the Agency subjected her to discrimination or harassment
as alleged.

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

At the outset, we note Complainant does not challenge the Agency’s decision to dismiss claim
(9). Upon review, we find claim (9) was properly dismissed for alleging a collateral attack on
the union process.

First, we address Complainant’s claim that she was subjected to discrimination and harassment
based on sex. Regarding claim (1), Complainant claimed that management followed her on her
delivery route in September, October, and November of 2014. Complainant claimed
management did not give her any justifications for watching and following her on her route and
she was not given any paperwork that described the acts as street observations. Complainant
argued that management did not follow or pull up to other carriers on their route. She insisted
that the time frames in which she was observed were too frequent. She indicated that
management was supposed to take turns observing other carriers at random but they always
seemed to observe her. Complainant stated her sex was a factor in her excessive observations
because management perceived her as being weak and unknowledgeable of procedures.

Regarding claim (2), Complainant stated on December 11, 2014, she was issued a letter of
warning for bringing mail back and willful delay of mail.2 She attested that management
indicated that she was issued the notice because she brought back approximately one hour of
mail. Complainant stated she informed management before leaving her route, that she had too
much mail. She reported that she would need assistance because she had to pick up her child and
could not work past 5:00 p.m. that day. Complainant stated that sex was a factor in issuing her
the letter of warning because management viewed her as a weak target to harass because of her
nice personality.

Regarding claim (3), Complainant stated that on December 20, 2014, management did not allow
her to drive the van assigned to her delivery route because it had a flat tire. She indicated that
maintenance was fixing the van while she was loading her mail and they had the flat fixed within
10 minutes. Complainant claimed the tire was fixed in enough time to allow her to drive the van
and deliver her route; but instead, management gave her an LLV to drive to be spiteful.
Complainant stated management took the keys away from her in a taunting manner.
Complainant stated her sex was a factor because management viewed her as weak, passive, and a
pushover.

Regarding claim (4), Complainant stated that on January 6, 2015, she called the interactive voice
response (IVR) employee line to request for sick leave because her child was sick and was not
going to school. She contended that the Supervisor, Customer Service (SCS 1) purposefully took
her leave notification out of the system so that she would not get paid.

2 The record reveals the Letter of Warning was dated December 11, 2014. In her affidavit,
Complainant states she received a copy of the LOW on December 12, 2014.
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Complainant indicated that SCS 1 stated that he denied her leave because she did not have proof
that her child was sick and did not go to school. Complainant asserted that she informed him
that she would be able to provide proof of her child’s sickness and that was when he conveyed
that she would get paid once she provided the proof. She stated that SCS 1 still denied her leave
even after she brought in proof that her child was sick and did not attend school. She contended
that management changed their reasoning for denying her pay and then stated she chose
transportation issues when she called into the IVR system instead of the story she had previously
stated about her child being sick. Complainant stated her sex was a factor because this was
continuous harassment.

Regarding claim (5), Complainant stated that on January 28, 2015, she left work 30 minutes after
beginning her day, due to anxiety, stress, and nausea caused by SCS 1.3 Complainant stated she
requested 7.5 hours of sick leave for January 28, 2015; however, it was denied by SCS 1.
Complainant claimed that SCS 1 denied her sick leave because he felt she was making up the
allegations of nausea, stress, and anxiety. Complainant reiterated her sex was a factor because it
was a factor in every other incident she has been in with management. Complainant stated
management feels that she is not knowledgeable with the correct procedures.

Regarding claim (6), Complainant stated she was issued disciplinary action on February 24,
2015, for “failure to report to work on time” and being insubordinate. Complainant stated
management told her she should come to work at 7:00 or 7:30 a.m. although her start time was
always 8:00 a.m. due to child care obligations. Complainant noted that management thought she
was available because she came in at 7:00 a.m. on two previous Saturdays; however, she states
the two Saturdays she came in early were only temporary. Complainant stated sex was a factor
in the disciplinary action being issued because it has been a factor in every other complaint and it
is continued harassment.

Regarding claim (7), Complainant claimed that on February 28, 2015, she noticed “smart”
remarks on her Form 3996 that she was pressured to hurry up, questioned frequently about her
job, yelled at, warned about numbering her parcels in the office, and on April 29, 2015, another
carrier cased her route. Complainant explained that the “smart” remarks stated she needed to be
back in eight hours although 30 minutes of assistance was given on route 1417, which according
to Complainant was overburdened at least an hour. Complainant stated she was told she could
not number her parcels in the office because that is a street function. Complainant stated that
another City Carrier Assistant (CCA) cased her route before Complainant arrived at 8:00 a.m.
and was told by a coworker that the CCA “needed something to do.” Complainant stated sex
was a factor because it has been a factor in all other incidents.

Regarding claim (8), Complainant stated she was mandated to work overtime once in April 2015,
and another time in June 2015, for thirty minutes each time. Complainant stated SCS 1 and SCS
2 were the management officials who required her to work overtime.

3 Although Complainant indicated she left work 30 minutes after her start on January 27, 2015,
the record reveals this occurred on January 28, 2015.
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Complainant stated that management claimed they had exhausted all their overtime desired list
(OTDL) people and mandated everyone to work overtime. Complainant felt that management
did not exhaust the full overtime list before selecting her to work overtime. Complainant
claimed management was unfair in the amount of overtime given to her because she did not
believe that all the people who were either on the overtime list or were CCAs were given
overtime first.

Regard claim (10), Complainant stated that on April 22, 2015, she became aware that her transfer
request to Dallas, Texas was denied. Complainant alleged that SCS 1 sabotaged her paperwork
by purposely giving her a bad evaluation so she could not transfer. Complainant stated
management told her that she was denied a transfer based on her “unacceptable work record and
attendance record.” Complainant objected to management’s reasons because she did not call in
hardly ever in the past year and she was on a route that was overburdened so her unacceptable
work record is not a valid reason. Complainant alleged her EEO activity was a factor in denying
her request for a transfer “[b]ecause of retaliation.”

Regarding claim (11), Complainant claimed that on June 29, 2015, management did not follow
correct procedures and harassed her by taunting her for being able to lift a very heavy parcel that
weighed in excess of 50 pounds. Complainant explained she received an Amazon parcel that
weighed more than 50 pounds. Complainant stated she told SCS 1 and SCS 2 that she could not
lift the parcel. She claimed they told her if it was not heavier than 70 pounds they told her she
would have to lift the parcel and deliver it. Complainant stated that SCS 1 gave the parcel to
another female carrier who was able to lift the parcel. Complainant stated SCS 1 then notified
her that if another female carrier was able to lift the parcel, then she should also because they
were both females. Complainant stated that SCS 1 told her that she must lift it because it is her
job.

Upon review, we find the Agency presented legitimate, nondiscriminatory reasons for many of
its actions. Regarding claim (3), SCS 1 stated that the van assigned to Complainant’s delivery
route was inoperable. He explained the van had a flat tire and it was being serviced. SCS 1
noted all of Complainant’s mail was already in a vehicle and there was no time to switch over to
another vehicle. He contended that Complainant was in that vehicle because she had delayed
mail on the previous day. SCS 1 stated Complainant did not suffer any consequences due to her
not being allowed to use the postal van to deliver her route. SCS 2 affirmed that Complainant
was not allowed to drive the postal van to deliver her route because it had a flat tire. SCS 2
stated Complainant was already in an LLV delivering the delayed mail she hid on the previous
day.

Regarding claim (4), SCS 1 acknowledged that he was the management official who denied
Complainant’s leave and charged her with eight hours of leave without pay. He stated that
Complainant requested leave for the wrong reason, failed to provide adequate documentation for
the leave, and lied in front of her union steward (Person A). SCS 1 stated that the reason
Complainant called-in is different than the documentation Complainant provided.

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Regarding claim (5), SCS 1 stated that his actions were not based on Complainant’s sex. The
Agency noted the Time and Attendance Report shows that on January 28, 2015, Complainant
was charged with .50 workhours and 7.50 partial LWOP hours. The Agency noted that on
January 29, 2015, Complainant was charged with eight hours of sick leave.

The record also contains an affidavit from Person A, City Letter Carrier, at Complainant’s
facility. Person A has been a Union Steward since approximately November 2014. Person A
stated she and Complainant were both letter carriers. Person A noted that on Wednesday,
January 28, 2015, Complainant was organizing her parcels in the office at approximately 8:14
a.m. Person A noted this is a street function, not an office function. Person A stated that SCS 1
pointed this out to Person A as a witness. Person A noted that she and SCS 1 went over to
Complainant’s route and SCS 1 told her this was a street function and that she needed to
concentrate on getting her route cased up and getting out of the office. Person A stated
Complainant started work at 8:00 a.m. and thus, did not have much mail cased yet. Person A
explained that Complainant was getting assistance and that another carrier was going to be
delivering some of her mail. As a result of this, Person A said at some point Complainant
needed to go through her packages and separate those packages that would go along with the
blocks of mail she would be giving to another carrier. Person A stated it did appear that
Complainant was organizing all of her parcels and not separating just those parcels she would be
giving away. Person A noted Complainant became upset, and stated she thought she was being
singled out and harassed. Person A stated Complainant claimed she was stressed out and needed
to go home. Person A noted that Complainant went home, and took sick leave the following day.

Regarding claim (6) SCS 1 stated that he was the management official who proposed
Complainant be issued disciplinary action. SCS 1 noted Complainant was issued a Disciplinary
Action Proposal for not reporting to work at a set time but ultimately, the discipline was not
issued.

Person A noted on February 24, 2015, another LOW was proposed to Complainant for
attendance. Person A stated Complainant’s start time was 8:00 a.m. Monday through Friday and
7:00 a.m. on Saturdays. Person A said Complainant’s start time was later during the week due to
day care issues, which was not a factor on Saturdays. Person A said a LOW was being proposed
because Complainant was coming in at a later time on Saturdays. Person A noted Complainant
stated she told the Manager, Customer Service (MCS) that she could no longer start early on
Saturdays. The MCS stated he thought that was just Monday through Friday. Complainant told
him that was incorrect. Person A stated that after Complainant told him she could no longer start
early on Saturdays, the MCS realized the misunderstanding was his fault, and the proposed LOW
did not proceed.

Regarding claim (8), SCS 1 stated Complainant was not required to work overtime. He stated
that if Complainant worked overtime, she did it on her own accord. SCS 1 stated that if
Complainant was on route 1406 and was asked or instructed to carry extra other than her route, it
was not overtime, it was considered undertime. SCS 2 stated that she was not aware of
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Complainant being mandated to work overtime. SCS 2 stated that Complainant gave time away
on a daily basis.

Person A noted that Complainant never told her that she was forced to work overtime. Person A
also described the working relationship between Complainant and management as “very
strained.” Person A noted that Complainant has told her that she does not want management to
speak to her at all. Person A explained she told Complainant has to speak to each carrier about
time needed. Person A noted that Complainant told her that if and when she needs help she will
let them know. Person A stated she told Complainant that it does not work the way Complainant
noted.

The Agency stated Complainant’s Overtime Work Report shows that from pay period 8, week 1
of 2015, through pay period 13, week 2 of 2015, Complainant worked minimal amounts of
overtime that totaled only 1.62 hours on only five separate occasions.

As the Agency has asserted legitimate, nondiscriminatory reasons for these actions, the burden
shifts to Complainant to establish pretext. Other than her bare assertions, Complainant presented
no evidence that the Agency’s actions were a pretext for discrimination based on her sex.

Next, we address Complainant’s claim that she was subjected to harassment. Regarding claims
(3), (4), (5), (6), and (8), management has articulated legitimate, nondiscriminatory reasons for
these actions, as discussed above. Thus, we will not reiterate our discussion of those claims.
However, those claims are considered along with the remaining claims comprising her
harassment claim.

Regarding claim (1), SCS 1 stated following and observing a city carrier or a rural carrier is part
of management’s duties. He indicated that management is on every route daily and observes all
clerks to ensure proficiency. He noted that all routes are periodically visited every day and that
employees are observed daily. He also stated that management is on routes but not always
observing employees, as they also deliver later priority express mail or other activities. SCS 1
stated that he never followed Complainant on her delivery route since September 2014.

SCS 2 stated that Complainant has not been followed on her route since September 2014. SCS 2
explained that if he gave her an Express piece of mail for her route or should just happen to drive
by her route enroute to another route she believes she is being followed.

Regarding claim (2), SCS 2 stated that Complainant was given a Disciplinary Action Proposal
for failure to follow instructions and delay of mail. He stated afterwards, she was issued a Letter
of Warning (LOW) for failure to follow instructions, unsatisfactory performance, and delay of
mail. SCS 1 confirmed Complainant was issued a LOW for deliberately delaying the mail.

Person A stated that on December 8, 2014, she attended a job discussion with Complainant and
SCS 2. Person A stated that on December 4, 2014, Complainant brought back mail left in her
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case and went home without informing management that she could not finish her deliveries.4
Person A noted Complainant also did not inform management that she brought mail back.
Person A explained it is the carrier’s responsibility to inform management when all the mail
cannot be delivered and when mail is brought back to the station. Person A stated Complainant
did not do either of these.

The record contains a Letter of Warning dated December 11, 2014, charging Complainant with
Unsatisfactory Performance (Delay of Mail). The LOW stated on December 4, 2014,
Complainant failed to deliver all mail entrusted to her on route 1417 and failed to notify
management that she would not be able to completer her assignment or that she would need
assistance. The LOW stated complainant also failed to inform management that she brought
mail back to the station. It was noted that Complainant’s failure to properly perform her duties
resulted in increased penalty overtime.

Regarding claim (7), SCS 1 stated that Complainant was not treated differently than anyone else
and no one yelled at her. He stated that no remarks have been written on anything about
Complainant. SCS 1 stated it is management’s job/duties to instruct and direct carriers when
performing their duties incorrectly. He stated it is management’s right to have the route case up
and parcels completed as a street function. SCS 2 confirmed that parcels are a street function
and not an office function.

Regarding claim (10), SCS 1 acknowledged that he was aware of Complainant’s request to
transfer to Dallas, Texas when he received an email to complete an evaluation for Complainant’s
transfer request. SCS 1 stated he answered the questions on the transfer form with integrity and
honesty and was not part of the decision to deny Complainant’s transfer.

The record contains a copy of the eReassign Validation completed by SCS 1 on April 16, 2015,
wherein he described Complainant as “a good worker if she is on a route she can handle. If the
route is slightly overburden she will complain and need assistance. She does not know proper
procedure, rules, and standards of a City Carrier. When given instructions she feels you are
picking on her instead of just performing your supervisory duties.”

The Customer Service Operations Manager (CSOM) was the deciding official on Complainant’s
transfer request. He indicated that he denied Complainant’s transfer based on the supervisor
evaluation, live discipline, and attendance issues. The CSOM cited the Memorandum of
Understanding in the collective bargaining agreement that states an employee must have an
acceptable work, attendance, and safety record and meet the minimum qualifications for all
positions to which they request reassignment. The CSOM stated that the supervisor evaluation
played a small part in his decision to deny the transfer request. However, he stressed that it was
Complainant’s attendance record that was the main reason for the denial.

4 Although Person A states Complainant brought mail back on December 5, 2014, the record
reveals this occurred on December 4, 2014.
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The District Complement Coordinator (DCC) explained that she processed all transfer requests
for City Carriers through eReassign. She stated that on March 29, 2015, she began to process a
reassignment request for Complainant due to carrier vacancies in Dallas, Texas. She clarified
that she did not deny Complainant’s request, she only processed it. The DCC stated that she sent
the request to the deciding official to make a decision. She stated that the supervisor evaluation
did play a part in the decision; however, she stated that the deciding official told her that
attendance played a major part in the decision to deny the transfer. The DCC stated that
Complainant had 30 periods of unscheduled leave since 2013.

Regarding claim (11), SCS 1 stated that the Agency received a parcel that was going to an
address that was on Complainant’s route. SCS 1 noted there was a 70-pound weight limitations
for parcels. He asserted that all parcels received by the Agency are within the weight limitation
that a City Carrier is required to lift. SCS 1 stated that according to Complainant’s job
description, she was obligated to lift and deliver the parcel, as was mandated when she was
hired. SCS 1 indicated that Complainant did ultimately deliver the parcel. SCS 1 stated he did
not taunt Complainant when she stated that the parcel was too heavy. He stated that he explained
to Complainant, as her supervisor, the required duties of a City Carrier.

SCS 2 stated that the parcel was marked “heavy,” which indicated that caution and proper lifting
technique should be exercised. SCS 2 stated that she picked up the parcel and also had another
female carrier lift the package and SCS 2 determined that it was not too heavy. SCS 2 explained
that a letter carrier, upon hiring, is required to be able to lift 70 pounds. She stated that nothing
the Agency ships or receives is over that weight limit; therefore every package that comes
through the facility is within the carriers lifting requirements.

Upon review, we find that Complainant failed to prove by a preponderance of evidence that she
was subjected to discrimination or harassment. Other than Complainant’s bare assertions, there
were no objective evidence that the Agency’s treatment of Complainant was based on her sex or
in retaliation for her protected EEO activity. We find Complainant failed to meet her burden to
demonstrate the existence of a hostile work environment by a preponderance of the evidence.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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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.
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.
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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

July 6, 2018
Date