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

Equal Employment Opportunity Commission

Aug 13, 2019

0120181008 (E.E.O.C. Aug. 13, 2019)

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

Tran M.,1
Complainant,

v.

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

Appeal No. 0120181008

Agency No. 4J493001317

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 28,
2017, final decision concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as a Postal Service Employee ("PSE") Sales and
Services Distribution Associate, GS-6, at the Agency’s Kalamazoo Hub Station in Kalamazoo,
Michigan.

On April 11, 2017, Complainant filed a formal EEO complaint claiming that the Agency
subjected her to discriminatory harassment based on race (“Black”), national origin (Nigerian),
color (black), age (YOB: 1958), and in reprisal for prior protected 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 December 23, 2016, a co-worker (“CW1”) entered Complainant’s personal
space and screamed derogatory racial profanities at her, and management did
nothing; and

2. on January 13, 2017, Complainant was terminated.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant did not respond to the notice.

On December 28, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant refutes, through her representative, several
statements made by her coworkers and asserts that she was subjected to discriminatory
harassment. Complainant also submits a partial copy of her file for her NAACP complainant
against the Agency.

ANALYSIS AND FINDINGS

Disparate Treatment: Claim 2 (removal)

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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
Construction 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 Texas Department of
Community 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
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
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Agency management articulated legitimate, nondiscriminatory reasons for terminating
Complainant from her position. Complainant’s first-line supervisor (“S1”) stated that
Complainant’s employment was terminated because she “did not successfully complete her 90-
day probationary period” and did not “work at sufficient speed to keep up with the amount of
work required for the position.” S1 explained that Complainant’s insufficient speed would
“hinder the work of others.” S1 further stated that she consulted with Complainant’s other
supervisors who also did not recommend that Complainant’s employment be retained beyond her
probationary period.

Complainant’s Postmaster (“P1”) testified that he concurred with Complainant’s removal. P1
stated that Complainant “did not make productivity gains during her 90-day probationary
period,” and Complainant was informed that she was removed because of her “lack of
productivity.” P1 clarified that Complainant’s removal was separate from the December 23rd
incident; the incident “played no role” in Complainant’s removal; and Complainant “would have
been removed even if the alleged incident hadn’t happened.”

A copy of Complainant’s employee evaluation report documenting Complainant’s performance
during her 90-day probationary period indicates that she was rated “unacceptable” for work
quantity on her 30-day and 60-day evaluations and Complainant was rated “unacceptable” for
work quality and work quantity for her 80-day evaluation. The report states that Complainant
“did not successfully complete probationary period [because she] was unable to work at
sufficient speed.”

A copy of Complainant’s SF-50 states that Complainant was removed because she “did not
successfully complete probationary period [and] was no[t] able to work at productivity speed
required.”

The record indicates that S1 emailed Complainant’s three other supervisors on January 9, 2017
to seek their input on whether Complainant should be kept beyond her probationary period. The
record includes responses from the three supervisors indicating that Complainant “works veeeery
[sic] slow,” Complainant “has no sense of urgency,” and that “other offices have asked [S1] not
to send [Complainant] when they need help because she is too slow.”

One of the supervisors (“S2”), who provided input on Complainant’s performance, testified that
she supervised Complainant when Complainant worked at the Westwood location. S2 stated that
she informed S1 that Complainant was “nice but she was too slow for the task [S2] needed her to
complete.” However, S2 further testified that, while she was not involved in Complainant’s
termination, she believed that management had already decided to terminate Complainant before
S1 requested information on Complainant’s performance. S2 stated that she had “heard many
times thr[ough] the grapevine [that] there was a lot of racial tension and constant mistreatment of
the minority employees.” S2 further stated that she believed Complainant was terminated
because of her race, color, national origin, and age. S2 explained that she heard “constant
gloating from [Complainant’s] white coworkers” after Complainant was terminated and S2
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stated that “white employees were definitely treated differently and allowed to treat the
minorities any way they wanted.” For example, S2 stated that it was “reported to [her] that the
white employees had the ‘easy’ schedules with more weekends off or ‘better’ shifts;” the white
employees were not required to call in; the white employees were never held accountable for
maintain[ing] a regular schedule; the white employees were allowed to take “multiple breaks” on
the dock; and “minorities were not notified or properly educated when bidding opportunities
were given for permanent positions with [S1].”

We acknowledge that S2 testified that she believed that management removed Complainant
based on Complainant’s race, national origin, sex, and reprisal for prior protected EEO activity.
We further acknowledge that S2 made this determination based on information she heard second
hand. This testimony directly conflicts with the statements provided by S1 and P1. Here,
however, Complainant effectively waived her right to have this matter considered before an
EEOC AJ when she failed to respond to a notice informing her of a right to request a hearing. If
Complainant had responded and requested a hearing, then the AJ may have developed the record
more through discovery and cross-examination of witness. Moreover, we lack the possible
benefits of an EEOC AJ’s credibility determinations. We are left with S2’s version of events and
that of S1 and P1 which are completely at odds. As such, the evidence of record was at best, in
equipoise. See Complainant v. Dep't of Health and Human Servs., EEOC Appeal No.
0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No.
0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug.
23, 2012).

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, national origin, color, age, and reprisal for prior protected EEO activity.

Harassment: Claim 2

To establish a claim of discriminatory 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).

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 basis – in this case, her race, national origin, color,
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age, and reprisal for prior protected EEO activity. Only if Complainant establishes both of those
elements – hostility and motive – will the question of Agency liability present itself.

Here, as discussed above, Complainant simply has provided inadequate evidence to support her
claim that her treatment was the result of her race, national origin, color, age, and reprisal for
prior protected EEO activity. We conclude that a case of harassment is precluded based on our
finding that Complainant failed to establish that any of the actions taken by the Agency were
motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

Harassment: Claim 1

As previously discussed, to establish a claim of harassment, Complainant must show that: (1) she
is a member of the 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. Humphrey v. U.S. Postal Service,
EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 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, 510 U.S. at 21. The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires
careful consideration of the social context in which particular behavior occurs and is experienced
by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-
discrimination laws are not a “general civility code.” Id.

We find that claim 1 fails to support a finding that the Agency subjected Complainant to
discriminatory harassment.

S1 testified that after Complainant informed her of the alleged incident, she conducted an
extensive investigation by interviewing all witnesses except one individual who was working at
another postal branch after the incident occurred. S1 explained that CW1 had confronted
Complainant about the need to work faster while scanning mail that was being removed from the
truck as CW1 was moving the mail containers. S1 stated that from her investigation, she
determined that CW1 was concerned for Complainant’s safety, however, the way CW1
communicated with Complainant made Complainant feel “intimidated and unsafe.” As a result,
S1 explained that she instructed CW1 to treat all employees with dignity and respect and she
referred CW1 to the Employee Assistance Program, but S1 stated that did not inform
Complainant of these actions “for privacy concerns.”

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Although Complainant testified that CW1 screamed at her while stating, “you f__king, old
African piece of sh_t,” S1 clarified that she was not aware of any racial profanities at the time
she investigated the alleged incident. S1 explained that these profanities were not mentioned in
any of the statements she received from Complainant and from the witnesses. S1 further
explained that she only became aware of the alleged racial profanities when Complainant
indicated, for the first time, during mediation that that CW1 had allegedly made these statements.

P1 testified that Complainant “never told [S1] of the words that were spoken to her on December
23rd until the redress hearing months later.” P1 further testified that S1 investigated the alleged
incident and none of the statements she received regarding the incident confirmed the derogatory
words Complainant alleged, during redress hearing, were mentioned.

The record includes investigation statements S1 collected from Complainant, CW1, and four
other coworkers (“CW2,” “CW3,” “CW4,” and “CW5”). Complainant indicated in her
statement that CW1 came “charging towards me like a bull and was so close to my face, cursing,
swearing and spiting at my face. She used all kind of profane words that I cannot even put down
here.”

CW1 stated that she told Complaint that “if she had a problem with [her], to come talk to [her]
instead of b__ch to everyone else about her.” CW1 further stated, in pertinent part, that,

It’s not my job to keep reminding her to move out of the way. She told me and several
drivers to slow down. We told her that out here we move fairly fast. We were not
throwing the APCs. We were moving them off the truck. The drivers, some were in a
hurry to get of here. So, they were moving quick. I can’t babysit her – and tell her to
move every time we are moving equipment. I never yelled at her. I raised [my] voice so
she could hear me because it was quite loud. I simply said that if she wasn’t ready to be
out here and move quick then she needs to talk to the supervisor and let them know. . . . I
was trying to be polite, but when she overtalked [sic] me and said I was going too fast – I
can’t help that. I go at the rate of the drivers. . . . In the process of trying to stop some
APCs I may had said s_hit look out, because I couldn’t grab them in time or they came
out too fast for even me to grab. . . . I never spit on her nor did I really get in her face. I
wanted to make sure she could hear what I was saying with all the equipment being
moved. I never threatened her, bullied, or intimidated her. I simply said it would be an
idea to talk to [S1] about not being on the dock if she felt unsafe out there.

CW2 stated that she witnessed a “hostile altercation” between Complainant and CW1. CW2
further stated, in pertinent part, that,

there were harsh words exchanged between the two women. Tensions were very high,
and there was a general attitude of hostility/defensiveness. [CW1] tried to communicate
to [Complainant] that she had been worried about [Complainant’s] safety. The latter
wanted [CW1] to be more considerate in how those sentiments were expressed. . . . The
parting words from [CW1] were that if [Complainant] continued to be slow . . . she
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should stay off the docks. I have learned that [CW1’s] manner can often come across as
being harsh or gruff, but she takes safety very seriously.

CW2 further explained in her statement that Complainant “is extremely slow-paced” and is “not
very aware of her environment.” However, CW2 stated that these issues “ha[ve] nothing to do
with [Complainant’s] age or any other personal factors” given that “others [who] work at the
Hub are the same age or even older.” CW2 further stated that she believed that “if
[Complainant] were to work at a smaller officer where she had only a few consistent tasks, she
would do very well. The Hub (and Tour 3) with its fast-paced speed and wide variety of tasks
which often overlap, does not seem to be a good fit for her.”

CW3’s statement did not reference the December 23, 2016 incident. Rather CW3 explained that
she tried to help Complainant and CW3 denied saying “anything bad to [Complainant] or about
[Complainant].”

CW4 stated that CW1 approached Complainant “very rudely” with “loud screaming and yelling
with use of profound language.” CW4 further stated that CW1 was in Complainant’s face as she
allegedly said some “very mean thing[s].” CW4 also stated that after the December 23, 2016,
incident, CW3 allegedly spread gossip about Complainant by calling her “the slow old lady.”

CW5 indicated in her statement that Complainant called CW3 an “evil little butterfly” and
Complainant accused CW3 of telling other employees that she was “old and slow.”

We find that considering these allegations, even if true, Complainant has not shown evidence
that considerations of her race, national origin, color, age, or retaliatory animus motivated
management’s actions toward Complainant. S1 and P1 stated that at the time S1 conducted the
investigation, there was no indication from the statements S1 collected that CW1 yelled “you
f__king, old African piece of sh_t,” at Complainant on December 23, 2016. Aside from
Complainant’s statement, there is insufficient evidence in the record to substantiate that CW1
made these statements as Complainant alleges. The investigation statements S1 collected
indicate that CW1 confronted Complainant out of safety concerns. We further find that these
incidents Complainant alleges are not sufficiently severe or pervasive as to constitute hostile
work environment/harassment under Commission regulation. The incidents involved are of a
type that typically arise out of workplace conflicts or communications. However, EEO laws are
not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review
of the record, including Complainant's contentions on appeal, we find that Complainant failed to
demonstrate that the Agency discriminated against her as alleged.

We AFFIRM the Agency’s final decision 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. 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.
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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

August 13, 2019
Date