Tess W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019001163 (E.E.O.C. Sep. 18, 2019)

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

Tess W.,1
Complainant,

v.

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

Appeal No. 2019001163

Hearing No. 480-2016-00411X

Agency No. 4F-926-0005-16

DECISION

On October 15, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 13, 2018 final action 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Sales/Services Distribution Associate at the
Agency’s Chino, California Post Office.

On November 16, 2015, Complainant filed the instant formal complaint. Complainant claimed
that she was subjected to harassment/a hostile work environment on the basis of disability and in
reprisal for prior EEO activity when:

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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1. on May 28, 2015, she was given work instructions in a hostile manner;

2. on June 6, 2015, her work break was delayed;

3. on June 11, 2015, she was told in a hostile manner to move her car to the handicapped
parking space when she was servicing a customer;

4. on June 13, 2015, she was required to take lunch;

5. on June 1, 2015, July 31, 2015, August 3 and 13, 2015, and September 14, 2015, her
request for leave was involuntarily amended, i.e., changing the “clock rings;” and

6. on September 22, 2015, she was forced to sign a PS Form to change her weekly hours
from 35 to 40.

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
a Decision Without a Hearing. On August 15, 2018, the AJ issued a decision by summary
judgment in favor of the Agency. In the instant final action, the Agency adopted the AJ’s
decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

To establish a claim of discriminatory hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
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In other words, to prove her harassment claim, Complainant must establish that she 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 her protected bases – in this case, her
disability and/or prior protected activity. Only if Complainant establishes both of those elements
– hostility and motive – will the question of Agency liability present itself. Here, as discussed
below, Complainant simply has provided inadequate evidence to support her claim that her
treatment was the result of her disability and prior protected activity.

Complainant identified her disability as cervical disc disease. For purposes of this analysis, we
assume, without so finding, that Complainant was an individual with a disability. During the
relevant period, Complainant had a limited duty assignment based on an on-the-job injury with
job restrictions/accommodations.

Regarding claim 1, Complainant asserted that on May 28, 2015, she was given work instructions
in a hostile manner. Specifically, Complainant alleged that the Acting (204-B)
Supervisor singled her out and yelled at her for doing things that her co-workers also did. She
also claimed that the on May 28, 2015, the Acting Supervisor told her she had to write the route
number on Form 8076s (Mail Holding), but he did not require other clerks to do the same. The
Acting Supervisor did not recall the May 28, 2015 incident.

Regarding claim 2, Complainant alleged that on June 6, 2015, her work break was delayed. The
Acting Supervisor explained that it was a Saturday and “the window was very busy and I asked
her to wait, since the other clerks had also pointed and they had come to work hours earlier than
[Complainant] and she was not being denied break. I only had a couple of clerks.”

Complainant asserted that the Acting Supervisor told her she could not take a break as long as
there were customers in the lobby, but her co-workers had taken breaks earlier that day when
there were customers in the lobby. The Acting Supervisor stated, however, that Complainant did
not understand, and, “I just asked her to hold off on the break. I could not have all the clerks go
at once. She was not denied a break.”

Regarding claim 3, Complainant claimed that on June 11, 2015, she was told in a hostile manner
to move her car to the disability parking space when she was servicing a customer.

The Acting Supervisor asserted that Complainant complained to him that someone had parked in
the disability parking space and ,“I told her I will have them move their car and let her know
when she can move her car to the handicapped parking. When the other car was moved, I
notified her she could move her car after she was done with that customer since the window was
slow.”

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With respect to Complainant’s assertion that the Acting Supervisor yelled at her and asked her
why she took so long to move her car, the Acting Supervisor stated, “I never yelled at her and I
did not ask her why it was taking so long.”

Regarding claim 4, Complainant asserted that on June 13, 2015, she was required to take lunch.

The Acting Supervisor stated at that time the other clerks had asked for “a no lunch or there was
something else going on that [Complainant] was not aware of it. If [Complainant] had asked for
the accommodation to not take a lunch, I may have been able to allow it if it made business
sense. I cannot accommodate everyone all the time… if I allowed my clerks to take a no lunch,
then depending on the schedule, it would be a bad business decision, I may end up with overtime
or no clerks at the end of the day. I don’t remember the specifics of that day but, I usually will
weigh what else is going on and try my best to get the needs of the service met and also help
with the needs of the employees.”

Regarding claims 5 and 6, Complainant claimed that on June 1, 2015, July 31, 2015, August 3
and 13, 2015, and September 14, 2015, her request for leave was involuntarily amended, i.e.,
changing the “clock rings,” and on September 22, 2015, she was forced to sign a form to change
her weekly hours from 35 to 40.

The AJ noted that at that time Complainant’s bid position was for a non-traditional full-time
(“NTFT”) SSDA with a 6-day/week, 35-hour workweek. Complainant was awarded a limited
duty job offer that was based on the schedule of a five day/week full time regular (“FTR”), 40-
hour SSDA position.

The Acting Supervisor noted there were problems with entering Complainant’s leave because of
a Time and Attendance Collection System (“TACS”) schedule/hours discrepancy. Specifically,
TACS would not allow him to enter the correct leave amounts. Complainant was working the
hours of the FTR bid position but her NTFT schedule was her schedule in TACS. The AJ noted
if the data in TACS reflects Complainant is scheduled to work 6 hours/day, TACS will not
permit entry of 8 hours of paid leave.

The AJ further noted that the Acting Supervisor made the following time entries for
Complainant:

a. June 1, 2015: entered OWCP Leave Without Pay (“LWOP”) 1 hour;
b. July 31, 2015: entered 4 hours Sick Leave (“SL”);
c. August 3 – 16, 2015: entered Annual Leave (“AL”) for all;
d. August 17-30, 2015: entered AL on the 17th-21st and SL on the 22nd-29th, the 30th was
Complainant’s Scheduled Day Off; and
e. September 5, 2015.

The Acting Supervisor asserted that he entered what TACS allowed him to enter, given that
Complainant’s schedule in TACS did not match her actual work schedule.
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According to the Acting Supervisor, he explained the PS Form was used to correct the hours
discrepancy. Specifically, the record reflects that the PS Form 1723 placed Complainant in a
temporary 40-hour assignment that matched her limited duty job offer. The PS Form 1723 was
signed by Complainant and was effective September 12, 2015. The Acting Supervisor stated that
he explained to Complainant why the PS Form 1723 was necessary.

The AJ noted that Complainant’s actual work schedule did not change as a result of completing
the PS Form 1723. Complainant had requested 8 hours of SL for September 5, 2015,
retroactively on September 8, 2015. The record reflects that on September 14, 2017, after the PS
Form 1723 was effective, the Acting Supervisor changed Complainant’s time entry for
September 5, 2017 from 5.75 hours to 8 hours of leave (the amount Complainant requested).
During that change, the type of leave was changed from FMLA Sick Leave to Annual Leave.
The Acting Supervisor acknowledged that was an error. Complainant did not inform the Acting
Supervisor to correct the error.

Furthermore, the AJ noted that Complainant has not alleged any similar timekeeping/leave issues
occurred after the PS Form 1723 was signed. After Complainant signed the PS Form 1723,
Complainant was able to take 8 hours of leave in a work day without incident.

As detailed above, Complainant has failed to provide sufficient evidence to call into question the
veracity of the explanations provided by the Acting Supervisor or otherwise indicate that these
incidents more likely resulted based on her disability and prior protected activity. Complainant
is unable to meet her burden of proving a discriminatory motive regarding the incidents making
up her claim of a hostile work environment. A claim of discriminatory harassment is precluded
based on our findings that Complainant failed to establish that any of the actions taken by the
Agency were motivated by her disability and prior protected activity. See Oakley v. U.S. Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because
the preponderance of the evidence of record does not establish that discrimination occurred.
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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.
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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

September 18, 2019
Date