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

Equal Employment Opportunity Commission

Apr 22, 2016

0120140522 (E.E.O.C. Apr. 22, 2016)

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

Shamika P.,1
Complainant,

v.

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

Appeal No. 0120140522

Hearing No. 540-2012-00232X

Agency No. 4E-852-0027-12

DECISION

The Commission accepts Complainant’s appeal from the September 16, 2013 final Agency
decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 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 Postmaster
Relief/Replacement at the Agency’s Post Office in Navajo Dam, New Mexico. Complainant
entered duty with the Agency on September 24, 2011. Complainant claims that, beginning
with her orientation, she has not been properly trained to perform the duties of her position.
Complainant alleges that when she began on-the-job training, the Officer-in-Charge (OIC)
would not let her get her notebook, constantly yelled at her, and stood in her way every time
she attempted to get her notebook. Further, Complainant claims that OIC humiliated her in
front of customers, rolled her eyes when Complainant did not respond the way she wanted, and
screamed at her on several occasions.
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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Additionally, Complainant alleges that from October 29, 2011 to November 26, 2011, OIC
become more hateful and yelled constantly. Complainant alleges that OIC came in the office
in the afternoons and went behind her saying that she did complete certain tasks. Complainant
believes that OIC created a hostile work environment after Complainant contacted the Office of
Inspector General to report illegal activities in the facility.

On December 2, 2011, OIC called Complainant and told her to come to the Post Office.
Complainant claims that OIC told her over the phone that she was firing her because
Complainant went to a retired Agency employee’s house to complain about how OIC had
trained her. OIC issued Complainant a Notice of Removal during Probationary Period on
December 2, 2011.

On March 26, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the basis of age
(46) and in reprisal for prior protected EEO activity2 when:

1. In September 2011, she was not properly trained to perform the requirement of her
job position;

2. Beginning October 29 through November 26, 2011, her former Postmaster created
a hostile work environment when she contacted the Office of Inspector General; and

3. On December 2, 2011, she was issued a Letter of Removal During Probationary
Period for Failure to Meet the Duties and Responsibilities of Her Position.

At the conclusion of the investigation of the complaint, the Agency provided Complainant with
a copy of the report of investigation (ROI) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency
issued a FAD pursuant to 29 C.F.R. § 1614.110(b).3
2 The Agency initially rejected reprisal as a basis of discrimination based on Complainant’s
claim that she was subjected to retaliation due to whistleblowing activities. The AJ initially
assigned to the matter granted Complainant’s motion to amend her complaint to include
reprisal as a basis of discrimination. Despite the Agency’s subsequent failure to address this
basis in its FAD, the Commission finds that the record is sufficiently developed for the
Commission to address it in this decision.

3 On January 22, 2013, the AJ notified the parties that she would be granting the Agency’s
motion for summary judgment and issuing a decision soon thereafter. Prior to the AJ’s
issuance of a decision, Complainant withdrew her hearing request and requested that the
Agency issue a FAD. On July 23, 2013, the AJ remanded the matter to the Agency for a
FAD.

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In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that
management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically,
regarding claim (1), OIC stated that Complainant received orientation in Albuquerque and in-
house training to perform the duties of the position, that Complainant was properly trained,
and that Complainant made notebooks for guidance. OIC further explained that she did not
feel that Complainant was able to communicate with her and that Complainant was distracted
the entire time she tried to train her. OIC agreed that she initially told Complainant that the
orientation was only one day instead of two, but did so because she was given incorrect
information and apologized to Complainant. OIC denied that she raised her voice to
Complainant or rolled her eyes at her. The Post Office Operations Manager (M1) confirmed
that Complainant was properly trained to perform the requirements of her position and that,
while three days were normally allowed for training, she approved requests from OIC for more
days to allow Complainant every opportunity.

With respect to claim (2), OIC and M1 denied knowing that Complainant contacted the Office
of Inspector General. The record shows that Complainant submitted an online report of
possible whistleblower reprisal to the Office of Inspector General’s website on February 12,
2012, and the case was subsequently marked “Closed Investigation Unfounded” after an
investigation.

Finally, as to claim (3), OIC stated that she issued Complainant the Notice of Removal during
her probationary period for her failure to meet the duties and responsibilities of the position.
OIC affirmed that Complainant failed repeatedly to follow the procedures she was taught
during her training such as locking the safe, facility doors, and parcel lockers and putting away
the accountable items. OIC averred that even after holding a fact-finding meeting with
Complainant on November 23, 2011, her failure to perform her duties continued. OIC stated
that she called Complainant to tell her she was being removed because Complainant gave her
an excuse each time she asked her to come to the Post Office to talk to her. OIC further
asserted that she terminated Complainant over the phone because Complainant could not follow
directions and she felt she could not trust her with the office. M1 added that she concurred
with issuing the Notice of Removal and agreed that Complainant was not going to be able to
stay employed due to performance. M1 noted that Complainant was given several training
opportunities and failed to show improved performance. Based upon conversations with OIC,
she agreed that Complainant did not satisfy the requirements of the position.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged. The instant appeal
followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that Agency officials gave contradictory statements
regarding her removal and training. Complainant states that her experience at the Agency
caused her emotional distress including severe depression, stress, and sleeplessness.
Complainant argues that if there was a problem with her performance, it would have been a
reflection of the “harassment-based training” she received. Accordingly, Complainant
requests that the Commission reverse the FAD.

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 he 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 a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

Complainant chose to withdraw her request for 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 protected classes, management subjected her to a hostile work environment
based on several incidents where Agency officials took actions that seemed adverse or
disruptive to her. The Commission concludes that the conduct alleged is insufficiently severe
or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline,
personality conflicts, and general workplace disputes and tribulations. For example, as to
claim (1), OIC maintained that Complainant was properly trained to perform the duties of her
position, including attending orientation; on-the-job training; and notebooks for guidance.

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ROI, at 251. OIC noted, however, that Complainant seemed distracted the entire time OIC
tried to train her. Id. at 254. M1 added that she approved additional training for Complainant
to assist her and her performance was discussed during several evaluations during her
probationary period. Id. at 53, 288. Further, regarding claim (2), OIC and M1 denied
knowing that Complainant contacted the Office of Inspector General while she was employed
with the Agency. Id. at 254, 291. The Office of Inspector General’s report indicated that it
had received an allegation from Complainant regarding an EEO complaint and it had closed the
investigation as unfounded. Id. at 328. Finally, OIC stated that she issued Complainant the
Notice of Removal during her probationary period because her performance was not improving
despite additional training and counseling. Id. at 257, 262. OIC cited numerous instances
where Complainant left the office unsecured, left accountable items out, failed to follow
instructions. Id. at 344. M1 concurred with Complainant’s removal based on her failure to
adequately perform the duties of her position. Id. at 292.

Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
explanation was a pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

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 (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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

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must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 22, 2016
Date