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

Equal Employment Opportunity Commission

Dec 20, 2018

0120173019 (E.E.O.C. Dec. 20, 2018)

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

Ranae L.,1
Complainant,

v.

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

Appeal No. 0120173019

Agency No. 1G333000816

DECISION

On September 6, 2017, 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 7, 2017, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a mail handler at the
Agency’s Miami International Service Center facility in Miami, Florida.

On September 20, 2016, Complainant filed an EEO complaint alleging that the Agency subjected
her to harassment and discrimination on the bases of race (African-American), national origin
(American), sex (female), color (Black), and age when: (1) since June 2013, she was harassed
and threatened by co-workers and, after reporting these incidents, management failed to properly
address the matter; and (2) Complainant was issued a notice of removal, dated September 21,
2015, with an effective date of October 21, 2015.

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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The Agency accepted the complaint and conducted an investigation which produced the
following pertinent evidence.

Complainant submitted numerous incident reports to management regarding alleged harassment
and/or threatening events by supervisors and co-workers, including yelling at her, tampering with
and/or damage to her vehicle, inappropriate hand gestures, taunting her, parking near her vehicle,
not being assigned certain tow mowers, driving too close to her, being accused of a near miss
accident, the union improperly representing her, leaving notes on her tow mower, cursing at her,
and using other offensive language. Management indicated they investigated Complainant’s
allegations, but there were no corroborating witnesses.

A police report dated June 5, 2014, indicates there was a verbal dispute between Complainant
and a co-worker and that management was aware of the situation.

A physician’s note dated in December 2014 indicates Complainant was under severe stress at
work from May 27 to June 23, 2014. A January 2015 worker’s compensation form indicates
Complainant had chest pains and mental health symptoms. A January 2015 statement from a
psychiatrist indicates Complainant was under treatment for depression and that her condition
began on December 15, 2014; a social worker’s note dated April 1, 2015, indicates Complainant
was not ready to return to work and needed to be re-evaluated in 30 days. Another note from the
social worker, dated April 28, 2015, indicates Complainant should not return to work on May 1,
2015, as she feels betrayed by management and the union and to return her to the same
environment with the same people would be a mistake.

Complainant alleges that her attendance was outstanding prior to the bullying and harassment.
The record contains Complainant’s time and attendance records and pictures of perfect
attendance shirts (awards).

Time and attendance records show Complainant did not work after December 15, 2014, with a
combination of sick and annual leave applied through April 16, 2015.

Management sent a letter, dated March 27, 2015, to Complainant indicating her unsubstantiated
absence since December 15, 2014, had become a concern and requesting medical documentation
to substantiate her absence. A letter, dated April 10, 2015, indicates Complainant was scheduled
for an investigative interview on April 20, 2015. A letter, dated May 14, 2015, indicates
Complainant failed to report for her investigative interview and due to her failure to report or
provide substantiating documentation, the entire period was converted to AWOL. Additional
letters dated in June and July 2015 indicate Complainant’s unsubstantiated absence was a
concern and requested medical evidence to substantiate her absence.

A Notice of Removal, dated September 21, 2015, indicates Complainant was to be removed,
effective October 21, 2015, for two reasons. First, she was charged with unsatisfactory
attendance and AWOL.
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She had been on AWOL since December 16, 2015 and for 1544.00 hours. Second, she was
charged with unsatisfactory performance due to failure to follow instructions. Complainant failed
to comply with the March, June, and July 2015 letters instructing her to provide acceptable
documentation to substantiate her continued absences and with the May 14, 2015 notice that she
was to report for an investigative interview.

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 (AJ). In accordance with Complainant’s request,
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.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that Complainant’s work record was “clean,” including her
attendance record, prior to being transferred to the Miami ISC facility, where she was subject to
pervasive and severe harassment, which adversely impacted her performance. Management
failed to properly investigate every instance of harassment and failed to properly notify
Complainant of her removal.

The Agency has not submitted a brief or statement in response.

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”).

Complainant alleged that the Agency subjected her to harassment. In Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment and create a hostile or abusive
working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75
(1998). The Court explained that an “objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively
perceives it as such. Harris, 510 U.S. at 21-22.
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Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the
complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.

We find that Complainant’s harassment allegations can generally be described as either being
spoken to rudely, harshly, or in bullying or threatening ways amounting to personality conflicts,
general workplace disputes, trivial slights and petty annoyances between a supervisor and
employee and/or co-workers. Even if Complainant’s allegations that her supervisors and co-
workers spoke to her in such ways were true, we find they are insufficiently severe or pervasive
as to have altered the conditions of her employment. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (October 16,
1998); and Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996)
(the allegation that a supervisor had “verbally attacked” the complainant on one occasion,
attempted to charge him with AWOL, and disagreed with the time the complainant entered into a
sign in log, were found to be insufficient to state a harassment claim). The allegations regarding
the statements, assuming they are true, were isolated incidents that are insufficient to support a
prima facie case of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993). We have also
found that such personality conflicts and general workplace disputes, as alleged by Complainant,
do not amount to unlawful harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332
(Oct. 10, 2012). Moreover, there is no evidence, beyond her bare assertions, that Complainant’s
race, color, national origin, sex or age played any role in incidents at issue. Thus, her
allegations, even if true, are insufficient to support this claim.

Complainant has also alleged that she was treated disparately with respect to how management
addressed her complaints of harassment and when she was issued a notice of removal. A claim of
disparate treatment is examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v.
Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S.
248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993).

Even if we assume that Complainant established a prima facie case of discrimination, her claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. With respect to her allegation that management failed to address her allegations of
harassment, management explained that Complainant’s allegations were investigated but there
were no corroborating witnesses.

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With respect to her allegations regarding her notice of removal, we find the record substantiates
management’s position that Complainant was absent without leave and failed to sufficiently
substantiate her absence from December 15, 2014 through the date of the notice, September 21,
2015. While the record establishes Complainant was experiencing mental health problems in
December 2014 and January 2015 and there is documentation of record that she continued to be
in treatment, it does not establish that Complainant sought approval for her extensive period of
leave or that she was so incapacitated as to preclude her ability to do so. The record also does not
establish Complainant provided such evidence in response to the Agency’s request for
documentation to substantiate her absence. Therefore, we find that Complainant has not
established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons
articulated by the Agency were a pretext for unlawful discrimination or motivated by some
unlawful discriminatory animus.

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). 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

December 20, 2018
Date