Phyllis G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120170897 (E.E.O.C. Dec. 18, 2018)

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

Phyllis G.,1
Complainant,

v.

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

Appeal No. 0120170897
Agency No. 4C450007816

DECISION

On December 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
December 14, 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether Complainant established that she was subjected to discrimination and harassment based
on her race (Caucasian), color (White), sex (female) and age (DOB: 12/10/62).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier
at the Agency’s Oakland Park Branch Office facility in Columbus, Ohio. The record contains
medical documentation indicating that Complainant is unable to work more than eight hours per
day due to her medical conditions, which include uncontrolled Hypertension and Diabetes.

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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On June 17, 2016, Complainant filed an EEO complaint alleging that S1 (Black, female, DOB:
2/25/91)), Acting Supervisor, and S2 (Black, female, DOB: 6/9/68)), Acting Employee Retention
Specialist, discriminated against and harassed her on the bases of race, sex, color, and age when:

1. On March 14, April 5, 8, 9, 11, 14, 18, May 2, 17 and 20, 2016, she was harassed
when asked questions about her work performance;

2. On May 5, 2016, she was issued a Letter of Warning (LOW); and

3. On dates to be specified beginning April 5, 2016, she was worked beyond her
medical restrictions.

Claim 1:

Complainant identified the dates on which she was harassed about her work performance as March
14, 2016; April 5, 8, 9, 11, 14, and 18, 2016; and May 2, 17, and 20, 2016. Complainant explained
that her workload is heavier on Mondays due to businesses on her route that are closed on
Saturdays. According to Complainant, on March 14, 2016, S1 kept approaching her and telling her
she needed to get out of the office. Complainant indicated that S1 did this about three
times, causing her to be “stressed out.” Complainant then told S1 that if she felt she could do better
than her then feel free to do so. In response, S1 stated, “I can do that.” At that point, S1 and
Complainant went back to the office of S2, who was then the manager of the Oakland Park Branch
Office. Complainant testified that during the meeting she was unable to tell her side because S1
kept talking over her and nothing could be resolved. Complainant stated that at this point her stress
level had spiked, her blood pressure went very high, and her blood sugar levels were also high,
which caused her to have difficulty speaking, and S2 called an ambulance for her and she was
transported to the hospital and did not return to work until March 29, 2016.

On April 18, 2016, Complainant stated that she was denied a request for assistance on her route.
Complainant further stated that while preparing for her deliveries, she was being watched closely
by her supervisors, was told that she should complete her route in eight (8) hours, and told that she
should not “bring mail back.” Complainant stated that she felt that she was being singled out.
During her deliveries, she called the office and spoke to S2. Complainant stated that she indicated
that she could not make 8 hours, but was told by S2 that she needed to carry her route. Complainant
stated that she told S2 she was being made to go against her medical restrictions. Complainant
alleged that S2 “basically implied she was lying,” and ultimately, she had to go 35 minutes over.

The remaining dates all involve occurrences where Complainant feels she was harassed and ended
up working beyond her medically restricted time limit. Complainant maintained that management
closely reviewed her work performance and gave her constant reminders that she had to complete
her routes.

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Claim 2:

On April 11, 2016, she filled out a PS 3996 and submitted it to S1 because Complainant felt she
could not make her route in eight hours, but S1 disapproved the request without looking it over.
At 2:58, Complainant called the Post Office and talked to a supervisor to let her know she would
not make it. Complainant stated that the supervisor indicated that she would call S1 to see what
Complainant needed to do. Complainant never heard back, and when she returned to the office at
4:10, S2 instructed her to give a half-hour of mail to another carrier. S2 asked why Complainant
was back so early, and Complainant explained that she gave herself a half hour to get back to the
station due to traffic and logistical concerns. S2 told Complainant she should have carried more
mail. On this date, Complainant worked over her eight-hour restriction, with an end time of 16:95.

Complainant received a Letter of Warning, dated May 2, 2016, for “Failure to Follow
Instructions/Poor Performance.” S1 issued the Letter of Warning for not carrying enough mail and
working over her eight-hour limit. According to the Agency, on April 11, 2016, Complainant was
instructed to complete her assignment and end her tour in eight hours, but she instead worked 8.45
hours. According to the record, Complainant did not submit a PS Form 3996 requesting assistance
and did not notify management that she could not complete her assignment as instructed.

On May 19, 2016, the Letter of Warning was expunged from Complainant’s record based on a
grievance settlement with the Union.

Claim 3:

Complainant testified she was worked beyond her restrictions on April 8, 11, and 18, 2016.
Specifically, on April 8, 2016, she was told to put up Auxiliary Route 3159, and did a PDI for
Zone 19, and this resulted in her end time of 16:68. The events regarding April 11 are set forth in
Claim 2. On April 18, 2016, she filled out a PS 3996 and S1 disapproved it. Complainant called
in at 2:59 and spoke to a supervisor and told the supervisor she was not going to make her eight
hours, and S2 told her to carry her route. When Complainant told S2 she was going against her
restrictions S2 “basically accused her of lying” and stated Complainant was wasting time.
Complainant told S2 she was not going to argue, and delivered an extra 35 minutes to avoid getting
harassed when she returned to the office. Complainant characterized management’s expectations
as having her “run her route” so she would not go over eight hours.

When asked why she thought her race was a factor in S1’s actions, Complainant stated that she
had a written statement from a carrier who stated that S1 the carrier that she hates white people.
For her sex discrimination claim, Complainant alleged that she was the only female in her unit,
and S1 did not treat the males as she treated her. For her age discrimination claim, Complainant
alleged that S1 treated her differently than others because she was older than S1 and had more
experience in the Agency.

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S1 testified that no one ever told Complainant to work past eight hours. S1 acknowledged that
Complainant may have purposefully worked more than eight hours, but she never instructed her
to do so. S2 explained that S1 would be responsible for giving Complainant her assignments, but
noted that on several occasions Complainant worked past eight hours without management’s
knowledge. S2 did not recall specifically the events of April 8, 2016. For April 11, 2016, S2 that
Complainant was not working, only riding to take the mail to another carrier. S2 insisted she gave
Complainant mail to take to the carrier in ample time to return to the station within eight hours,
but Complainant chose not to come back to the station and ignored S2’s text messages that she
knows Complainant received. For April 18, 2016, S2 recalled that when she checked where
Complainant was on her route she had ample time to carry her route and be back within eight
hours.

S1 and S2 both denied that Complainant’s race, color, sex, or age were factors in any of their
decisions.

At the conclusion of the investigation, 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. When Complainant did not properly 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.

CONTENTIONS ON APPEAL

Complainant submitted a statement indicating, among other things, that she should have had a
hearing. Complainant questioned the sufficiency of the investigation, indicated that there should
be a hearing to resolve this matter, and argued that she was telling the truth about S1 and S2’s
actions.

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”).

At the outset, we note that Complainant submitted a timely request for a hearing to the appropriate
EEOC office, but she did not notify the Agency of her request as required. Therefore,
Complainant’s hearing request was dismissed by an EEOC Administrative Judge in February
2018.
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A review of the hearing request form signed by Complainant indicates that she was informed that
she needed to send a copy of her hearing request to the Agency, and that a FAD would be issued
if she did not request a hearing, and that she would forfeit her right to a hearing if she did not
provide the Agency with a copy of her hearing request. Therefore, the Administrative Judge was
correct to dismiss Complainant’s timely hearing request. See Lopez v. USPS, 0120091185 (June
9, 2011) (affirming the dismissal of a hearing request where the agency provided the complainant
with notice that her right to a hearing would be forfeited if she did not provide a copy of the hearing
request to the agency).

Disparate Treatment

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, Complainant established a prima facie case of discrimination based on race,
color, sex or age, we find the Agency provided legitimate nondiscriminatory reasons for its actions
in claims 2 and 3. According to the Agency, no one ever told Complainant to work past eight
hours. S1 acknowledged that Complainant may have purposefully worked more than eight hours,
but she never instructed her to do so. Complainant’s Letter of Warning indicated that S1 issued
the Letter because Complainant did not carry enough mail and worked over her eight-hour limit.
According to the Agency, on April 11, 2016, Complainant was instructed to complete her
assignment and end her tour in eight hours, but she instead worked 8.45 hours. We find no
persuasive evidence of pretext. As noted above, Complainant’s allegations of pretext were based
on double hearsay, i.e., her contention that another carrier told her that S1 stated that she, S1, hated
white people; that she was the only female in her unit; and that she was older than S1 and had more
experience in the Agency.

Harassment

To establish a hostile work environment claim, 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
the 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
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creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See McCleod v. Social Sec. Admin., EEOC Appeal No.
01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

With respect to claim 1, we find, for the reasons stated above, that Complainant did not establish
by a preponderance of the evidence that these matters were based on her race, color, sex or age.
Complainant also failed to show that the alleged harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or created an intimidating, hostile or offensive work environment. The
Commission specifically finds that the requests by management were not unreasonable. The
requests were typical of those asked regularly in a normal workplace. Complainant’s reaction to
those requests, no matter how personally or deeply felt to be intrusive or insulting, are not sufficient
to establish discriminatory harassment. We also note that the discrimination statutes are not
civility codes and do not address rude or obnoxious behavior, but only discriminatory conduct.

With respect to claims 2 and 3, we find that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must
also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that claims 2 and 3 were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION

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).
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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 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, Director
Office of Federal Operations

December 18, 2018
Date