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

Equal Employment Opportunity Commission

Jul 12, 2018

0120161622 (E.E.O.C. Jul. 12, 2018)

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

Tammi W.,1
Complainant,

v.

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

Appeal No. 0120161622

Agency No. 4J604006715

DECISION

On March 31, 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 2, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier
at the Agency’s Oak Forest Post Office facility in Oak Forest, Illinois. On May 14, 2015,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African American) and reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when:

1. On January 2, 2015, she was given a discussion;
2. On January 2, 6, 12, 14, 23, 2015, and other dates to be specified, her
supervisor berated her;
3. On January 21, 2015, she was issued a 7-Day Suspension;

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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4. On January 24, 2015, her supervisor yelled at her and threatened her with
discipline;
5. On January 27, 2015, her supervisor yelled at her and did not allow her to
go to the Employee Assistance Program (EAP);
6. On January 27, 2015, and other dates to be specified, she was ordered to
work overtime;
7. On January 28, 2015, her supervisor said, "I don't know why you went to
my boss, but you shouldn't have done that!", and she perceived this as a
threat;
8. On January 31, 2015, her supervisor followed her in her truck while she
delivered her route and then yelled at her during her lunch and afterward;
9. On February 10, 2015, her supervisor yelled at her in front of coworkers;
10. On February 18, 2015, the acting supervisor yelled at her and the
Postmaster said that Article 3 of the contract gives management that right;
11. On February 20, 2015, the acting supervisor told her that she was not
allowed to leave her case;
12. On February 21, 2015, the acting supervisor kept questioning what she
was doing when she was taking care of the business for her route and
yelled at her in front of customers;
13. On February 21, 2015, she was issued a 7 Day Suspension which was
reduced to a Letter of Warning (LOW);
14. On dates to be specified, management refused to give her a copy of PS
Form 3996;
15. On February 24, 2015, her supervisor and postmaster yelled at her and her
supervisor ordered her to violate her medical restrictions;
16. On February 25, 2015, her supervisor yelled at her;
17. On March 3, 2015, her supervisor yelled at her and got in her personal
space and the postmaster would not sign off on her PS Form 1571 or PS
Form 3996;
18. On March 6, 2015, she was given a pre-disciplinary interview (PDI),
threatened with discipline, and her supervisor yelled at her and took
pictures of her;
19. On March 7, 2015, her supervisor yelled at her and banged on her vehicle
door, refused to sign her paperwork, and ordered her out of the building;
20. On March 10, 2015, her supervisor gave her a PDI;
21. On March 17, 2015, she was issued a 7 Day Suspension; and
22. On May 7, 2015, she was issued a Fourteen Day Suspension for Failure to
Maintain a Regular Schedule.

Complainant alleged that Acting Supervisors in Customer Services (S1 and S2) and the
Postmaster were the Responsible Management Officials who engaged in race discrimination,
racial harassment, and retaliation against her since January 2, 2015. After 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
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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 decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

With respect to claim 1, Complainant alleged that, on January 2, 2015, S2 approached her and
began asking her questions, referring to it as a discussion. Complainant said that she exercised
her Weingarten rights and requested a steward. She said that S2 told her she did not need her
steward, and that when Complainant asked S1 for her steward, S2 discontinued the discussion.
S2 explained that on December 31, 2014, Complainant was given two hours and fifteen minutes
of assistance, and had a return time of 4:00 p.m. but Complainant called at 2:25 p.m. indicating
that she was unsure if she was going to return on time. S2 said that she told Complainant that any
time used after 4:00 p.m. would be unauthorized but Complainant still returned to the office at
4:45 p.m. S2 said that, on January 2, 2015, she gave Complainant a job discussion about using
unauthorized overtime. The Agency determined that S2 had not engaged in race discrimination
despite Complainant’s assertion that S2 used a racial slur, since Complainant did not disclose
what the slur was. The Agency considered S1’s denial that she received a report from
Complainant that S2 had used a slur and Complainant’s inability to substantiate her contention.
The Agency also found that it did not engage in racial harassment or retaliation since
Complainant did not show that her race or prior complaints motivated the discussion or that S2’s
reason for the discussion was a pretext for reprisal.

Regarding claim 2, Complainant stated that on several dates in January 2015, S1 berated and
yelled at her. S1 denied engaging in this behavior. The Agency found that even if
Complainant’s account were true, S1’s behavior would be unprofessional and annoying, but
Complainant offered no reason to believe it was discriminatory or retaliatory. The Agency also
found that Complainant could not establish that S1’s conduct was severe or pervasive.

As to claim 3, Complainant said that S1 issued a Notice of Seven Day Suspension dated January
20, 2015, for engaging in an unsafe act, specifically making a U-turn. Complainant claimed that
she provided evidence that management had instructed carriers to make U-turns, and following a
grievance process, her suspension was reduced to a Letter of Warning (LOW). S1 explained that
she had issued the Notice because she observed Complainant backing her vehicle down the street
and across an intersection; parking on the wrong side of the street, against traffic; and making a
U-turn in an unauthorized location, all contrary to published policy. The Agency found that
Complainant did not establish a prima facie case of discrimination or retaliation because she was
unable to identify any comparators who were treated more favorably. The Agency also found
that evidence in the record established that Complainant had been trained on a number of carrier
responsibilities, including avoiding backing up whenever possible, and thus S1’s action was a
legitimate reason that Complainant failed to prove was a pretext for discrimination or reprisal.

Concerning claim 4, Complainant claimed that on January 24, 2015, S1 called her into the office
with her union steward and began to question her about what she had done with the mail when
she took a comfort stop the previous day. Complainant stated that because S1 was dissatisfied
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with her responses, S1 slammed papers onto the desk and yelled at Complainant that she would
be given a Pre-Disciplinary Interview (PDI). Although the Agency noted that S1 denied that she
had yelled at Complainant on this occasion, the record contained the union steward’s note that S1
became upset at the meeting and began yelling at Complainant. The Agency determined that
even though S1 was aware of Complainant’s prior EEO activity, Complainant did not establish
that her prior complaints or race, rather than her performance, caused S1’s alleged behavior.

With respect to claim 5, Complainant related that on January 27, 2015 she requested a PS Form
3996, Carrier - Auxiliary Control, and S1 began to yell and demand to know why Complainant
was taking so long to complete the form. Complainant stated that she requested a union steward
but S1 said she would not get a steward and directed Complainant to finish casing her mail.
Complainant said that because S1 had yelled, belittled and berated her on the workroom floor,
she asked to go immediately to the Employee Assistance Program (EAP) but S1 told her she
would have to wait until the schedule permitted. The Agency found that Complainant presented
no proof that she was not permitted to go to EAP or that she suffered any harm. The Agency also
found that Complainant did not offer any documentary or corroborative evidence, substantiating
that management's actions were discriminatory or retaliatory.

Regarding claim 6, Complainant stated that on January 27, 2015, she requested three hours of
assistance to complete her route but she was authorized only two hours of assistance.
Complainant stated that she informed S1 that she needed additional assistance to complete her
route in eight hours, but S1 directed her to deliver the mail, even if it required overtime.
Complainant said when she informed S1 that she was not on the overtime desired list (ODL), S1
reiterated that Complainant was to complete the delivery of the mail. Complainant stated that
carriers on the ODL and the City Carrier Assistants (CCA) were supposed to cover overtime
before she could be ordered to do so. The record confirmed that Complainant was not on the
ODL and that the union agreement only permitted non-ODL employees to work overtime if there
were no ODL employees available. The Agency found that Complainant failed to establish that
she was forced to work overtime. Evidence in the record established that her route was
established at six hours and eighteen minutes on the street, and that she consistently requested
auxiliary assistance without sufficient justification. The Agency also found that while she was
instructed to complete her bid assignment she failed to establish that she was ordered to work
overtime on any occasion.

As to claim 7, Complainant stated that she went to the Postmaster to try and have her do
something to end the hostile work environment caused by S1’s alleged anger and aggression. She
said that on January 28, 2015, S1 told her that she should not have gone to the Postmaster. She
said that she understood S1’s comment to be a threat and that her treatment thereafter was worse
and even more violent. S1 denied making the statement. The Agency found that Complainant
failed to establish that this alleged conduct occurred or that it was severe or pervasive enough to
establish a hostile work environment.

Regarding claims 8 and 9, Complainant stated that on January 31, 2015, S1 followed her while
she was delivering her route, and when she finished the block she put the mail up and started her
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lunch around 12:53 pm. She stated that S1 yelled and told her she was not to take her lunch break
that late. Complainant explained that S1 had told her to take her lunch between 12:00 noon and
1:00 p.m. but no later than 1:00 p.m. Complainant also asserted that when she returned to the
station at approximately 2:00 p.m. on February 10, 2015, S1 yelled at her from across the
workroom that she thought Complainant had to leave by 1:00 p.m. Complainant explained that
since S1 had not given her sufficient help, she had to change her appointment. She said that S1
replied that she had given Complainant assistance and she still could not finish on time. S1
denied yelling at Complainant. The Agency found that Complainant did not offer any evidence
to demonstrate that S1’s alleged conduct was motivated by her race, was severe or pervasive, or
in retaliation for her prior complaints.

In relation to claim 10, Complainant claimed that on February 18, 2015, S2 was walking with her
on street supervision and yelling at her to walk in an unsafe manner through the snow.
Complainant stated that when she returned to the office she told the Postmaster about S2's
behavior and the Postmaster told her that Article 3 of the National Agreement gave management
the right to manage. The Agency noted that S2 denied yelling at Complainant and that she
explained that she inquired why Complainant was not taking short cuts through the snow. The
Agency also noted the Postmaster stated that management had been instructed to conduct street
management on Complainant’s route because it was performing poorly. The Postmaster added
that S2 had discussed with Complainant the time-wasting practice of not taking obvious
shortcuts and instructed Complainant to cross a lawn to correct the practice, but Complainant
refused and instead returned to the office to complain to the Postmaster. The record contained
documentation confirming the short-cut practice and the supervisor’s right to manage the
carrier’s performance of duties. The Agency found that Complainant failed to prove that
management’s alleged conduct was a pretext for discrimination, harassment. or retaliation.

With respect to claims 11 and 12, Complainant stated that on February 20, 2015, each time she
left her case to perform some of her normal office duties, S2 followed her and asked why she had
left her case. Complainant said that she explained to S2 that she was going to get Change of
Address cards, and that S2 reiterated that Complainant was not supposed to leave her desk
because it was a time-wasting practice. Complainant also stated that on the next day, S2 walked
up behind her and demanded to know what she was doing, and Complainant replied that she was
making copies and taking care of business. S2 said that she reminded Complainant that she
needed to obtain permission to make copies. The Agency noted that S2 denied telling
Complainant she could not leave her desk, and that S2 explained that when she saw Complainant
standing near her office, she asked what Complainant was doing and reminded her about
engaging in time-wasting practices. The Agency found that Complainant could not establish a
prima facie case of retaliation because S2 was not aware of Complainant’s protected activity.
The Agency also found that Complainant could not show that S2’s exercise of her supervisory
authority violated Title VII.

Concerning claim 13, Complainant stated that on February 21, 2015, S2 issued her a Notice of
Seven Day Suspension that was later reduced to a Letter of Warning in the grievance procedure.
Complainant claimed that the disciplinary action was based on lies and fabrications. The Agency
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found that there was no evidence of the Notice of Seven Day Suspension or LOW in the record
and therefore Complainant had not proved that the alleged events had occurred.

As for claim 14, Complainant stated that on June 19, 20, 22, 23, 24, 2015, and July 9, 2015,
management refused to provide her copies of PS Form 3996, which is used by carriers who need
assistance or overtime to complete a route on time. The Agency noted that although S1 denied
refusing to give Complainant a copy of the form, the Postmaster acknowledged that management
may have refused to give Complainant a copy since it had not been a practice for the carrier to
receive a copy at the Oak Forest Office. She added that the issue was later resolved and
supervisors were directed to make and provide copies to the carriers prior to their leaving for
their route. The Agency decided that Complainant did not establish that management’s reason for
its actions was a pretext for discrimination, harassment, or retaliation.

Relative to claim 15, Complainant stated that on February 24, 2015, she kept getting busy signals
when she called the office to tell them that she would not be able to finish in eight hours, so she
returned to the office, arriving at 2:05 p.m. and was berated by the Postmaster and S1 about why
she had returned to the office without calling and why she was not able to finish her route in
eight hours. Complainant said that she felt attacked and requested a steward, explaining that she
could not complete her route without going into overtime, which would violate her medical
restriction, because she had not been approved the assistance she requested. She said that S1
directed her to complete her delivery. S1 and the Postmaster denied yelling at Complainant. The
Agency found that Complainant initially failed to provide any evidence that she was under any
medical restrictions and the record established that she was advised numerous times that the
documentation she submitted was not acceptable. The Agency noted that the matter was resolved
in a settlement on April 23, 2015. The Agency concluded that Complainant did not establish that
management’s actions were a pretext for race discrimination or reprisal.

As to claim 16, Complainant stated that on February 25, 2015, S1 yelled at her when she saw her
interacting with the union steward and that when she informed S1 that she needed assistance to
complete her route, S1 yelled at her to finish her route. Although S1 denied yelling at
Complainant, the Agency found that this alleged behavior was insufficient to support a hostile
work environment claim and Complainant could not prove that her race or prior complaints
motivated the action.

Regarding claim 17, Complainant stated that on March 3, 2015, while she was on break, S1
questioned what she was writing in her book. Complainant said that she did not tell S1 she was
on break but rather got in her truck and returned to the office to request that the Postmaster sign a
PS Form 1571, Report of Undelivered Mail, because she was going to go into overtime in two
units. She explained that since S1 had not approved her request to complete her route in eight
hours, she had to bring mail back to avoid overtime which would have violated the National
Agreement and her medical restrictions. The Postmaster countered that she signed the PS Form
1571, but added the notation that Complainant had failed to follow instructions, and that she had
to send a carrier assistant to deliver the mail Complainant had failed to deliver. The Agency
found that there was no violation of Title VII because Complainant provided no evidence of her
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supervisor yelling or that management’s alleged failure to sign her PS Forms 1571 or 3996
caused her any loss or harm or resulted in disciplinary action.

Concerning claim 18, Complainant stated that on March 6, 2015, she was given a PDI,
threatened with discipline, yelled at, and had her picture taken by her supervisor for bringing
back mail. Complainant said the Postmaster and S1 told her to complete her entire route and that
if she brought back mail, she would face disciplinary action. S1 denied yelling at Complainant
and recounted that the PDI was given in the presence of Complainant's union steward for failure
to follow instructions and unacceptable conduct. She also explained that she tried,
unsuccessfully, to take a picture of the delivery path Complainant claimed was unsafe. The
Agency found that Complainant presented no evidence that management’s actions were
discriminatory or retaliatory or sufficiently severe or pervasive to establish a hostile work
environment claim.

Regarding claim 19, Complainant alleged that her supervisor yelled at her, banged on her vehicle
door, refused to sign her paperwork, and ordered her out of the building around March 7, 2015,
because on the previous day she had notified her union steward about S1’s behavior and filed an
Abusive Supervisor Report. Complainant stated that she feared for her safety and called the
police when S1 came to her route because she was unsure "what other violent act" S1 might
commit. Complainant said she sought shelter in her truck while S1 banged on her window, and
when they returned to the station, S1 refused to sign her PS Form 3971, Request for or
Notification of Absence, and ordered her out of the office. The Agency considered the record
which contained: Complainant’s Abusive Supervisor Reports dated February 10, 20, 24, 25,
2015, and March 6, 2015; a police report; Complainant’s PS Forms 1571; a PS Form 3971 where
Complainant requested 2.5 hours of sick leave due to duress on March 7, 2015; and a TACS
AdjustPay Adjustment Certification establishing that Complainant was approved sick leave for
the time she missed on March 7, 2015. The Agency also considered S1’s explanation that
Complainant had called the Oak Forest Police Department regarding S1 while S1 was
conducting Street Management, and that she also called her union steward to escort her out of the
building claiming she was in fear. S1 further explained that when Complainant returned,
unaccompanied, S1 informed Complainant that she was calling the police and Complainant left
the building. The Agency found that Complainant offered no corroborative evidence to
substantiate her contentions or to demonstrate that management’s actions were motivated by
Complainant’s race or prior complaints.

As to claim 20, Complainant acknowledged that on March 10, 2015, she was given a PDI by S1
for her performance and misconduct on March 6, and 7, 2015. She claimed that she was asked
several questions she considered "invasive," such as why she called the police about her
supervisor and what she told the police when she called. The Agency found that management’s
actions were motivated by Complainant’s performance, and not her race or prior EEO activity.
The Agency considered the Postmaster’s statement that even though Complainant had filed
multiple Abusive Supervisor Incident Worksheets, and sent a narrative of her experiences to the
Area Manager (Vice President), the District Manager, her Congresswoman, the union, the Postal
Inspection Service, the Labor Department and local police, she never complained to them, S1, or
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S2 that she believed she was being subjected to race discrimination or reprisal. Instead, the
Agency considered the Postmaster’s statement that in response to Complainant’s allegations of
general harassment, the Threat Assessment Team conducted a thorough investigation of the work
environment and found that it was not hostile. Additionally, even though the union steward
stated that Complainant was yelled at every day because she could not finish her route, the
Agency found that this conduct was unprofessional but not severe or pervasive or because of
Complainant’s race or prior complaints.

With respect to claim 21, Complainant said that on March 18, 2015, she was issued a Notice of
Seven Day Suspension, which was dated March 17, 2015, for Failure to Follow Instructions,
Resulting in the Delay of First Class Mail, and for Unacceptable Conduct for calling the police
about S1 on March 7, 2015. Complainant stated that she had informed S1 that she brought back
mail because she needed additional assistance and that she had called the police because of S1's
dangerous, threatening, violent behavior. The Agency found that Complainant’s alleged
comparator, S1, was not similarly situated because she was an acting supervisor whose
instructions and actions had not resulted in the delay of first class mail and she had not called the
police about her supervisor when she was conducting street management as Complainant had.
The Agency also found that Complainant’s subjective belief that management’s actions were
race-motivated or in reprisal to be insufficient to establish pretext.
Finally, regarding claim 22, Complainant advised that she was issued a Notice of Suspension of
Fourteen Days dated May 7, 2015, for failure to maintain a regular schedule. She noted that she
was given a PDI for attendance on April 23, 2015, and then the suspension was issued. The
Agency noted that the Postmaster stated that S1 issued the suspension because Complainant was
either late or on an unscheduled absence on eight occasions. The record shows that a grievance
settlement dated July 7, 2015, reduced the suspension to a discussion. The Agency found that
management’s reasons were legitimate and Complainant failed to prove they were a pretext for
discrimination.

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”).

We find that Complainant failed to show by a preponderance of the evidence that she was
subjected to discrimination. We find the Agency’s reasons for its actions to be legitimate and
nondiscriminatory. Regarding claim 7, we find that Complainant failed to show by a
preponderance of the evidence that the remark in question was made. The record before the
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Commission indicates that Complainant and her supervisors were in constant conflict and
contention about Complainant’s performance and execution of her carrier duties. The record
does not contain any evidence that supports a finding that management’s actions were intended
to treat Complainant differently, harass her, or retaliate against her because of her race or prior
EEO complaints. Complainant failed to show that similarly situated persons were treated better
than she was treated.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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

July 12, 2018
Date