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

Equal Employment Opportunity Commission

Jan 8, 2020

Appeal No. 0120181453 (E.E.O.C. Jan. 8, 2020)

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

Velva B.,1
Complainant,

v.

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

Appeal No. 0120181453

Agency No. 4E-840-0052-17

DECISION

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 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Station in Salt Lake City, Utah. Report of Investigation (ROI), at 21. Complainant’s
duties as a City Carrier required her to deliver mail on a prescribed route using a vehicle. She
was required to exit her vehicle, at times, and deliver mail on foot using a hip satchel or a mail
cart. ROI, at 135-137.

Complainant was managed by the Supervisor of Customer Services, the Manager of Customer
Services, the Manager of Operations Program Support, and a second Supervisor of Customer
Services.

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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According to Complainant, on July 19, 2017, the Supervisor of Customer Services said that he
was going to be “following her today,” and began to ask her several questions, which caused her
to experience stress. Id. at 135-138. Complainant averred that the Supervisor of Customer
Service then accompanied her on her route, but she became stressed when he provided unwanted
directions while on her route. Id. Complainant stated that, as instructed by the Union Steward,
she immediately drove back to the office with undelivered mail and “clocked over” to office
time. Id. Complainant averred that she was having pregnancy related contractions from the stress
and that her injured hand from bee stings was swollen and very itchy, and therefore she left work
early that day. Id. at 138.

The next day, July 20, 2017, Complainant completed PS Form 1767, Report of Hazard, Unsafe
Condition, or Practice. Id. at 231. Therein, Complainant indicated that she was pregnant and that
the Supervisor of Customer Services kept giving her improper instructions in an aggressive
demeaning manner, which caused her to incur stress and anxiety. Complainant additionally noted
that she experienced contractions as a result of the stress and anxiety she experienced that day.
Id. The same day, on July 20, 2017, the Chief Union Steward submitted a letter to management,
alleging that the Supervisor of Customer Service gave Complainant improper instructions in a
loud manner, causing Complainant to experience anxiety, stress, and pre-term labor. Id. at 232.

The Supervisor of Customer Services however explained that he simply conducted a Route
Inspection, requiring that he observe Complainant in the performance of her duties. Id. at 172-
176. The Supervisor of Customer Services also explained that a Route Inspection requires
interacting with a Carrier to determine how they go about performing the duties of their position.
Id. The Supervisor of Customer Services averred that he conducted the Route Inspection in the
same manner as he did with other employees and he relied on the Agency’s Handbook M-41,
City Delivery Carrier's Duties and Responsibilities, in conducting the Route Inspection. Id.

Complainant thereafter submitted medical documentation to the Agency dated July 27, 2017,
indicating that she is pregnant with an approximate delivery date of October 20, 2017. Id. at 236.
The submitted medical documentation also noted that Complainant should not lift more than 20
pounds, deliver to apartments with 10 plus units, and that she is unable to carry a hip satchel
during her pregnancy, among other things. Id.

On August 3, 2017, Complainant attempted to return her work, but the Manager of Customer
Services said that she needed to submit medical documentation clearing her for work.
Complainant was therefore asked to leave work and asked to return when she provided the
requested medical documentation. Id. at 131. The Manager of Customer Service averred that
Complainant was sent home on August 3, 2017, to ensure Complainant’s safety because her
medical documentation did not support that she suffered from a “stress related issue.” Id.

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Complainant additionally averred that between August 7 and August 19, 2017, she was sent
home early each day and was not accommodated with eight hours of work. The second
Supervisor of Customer Services stated that Complainant was unable to perform her entire route
due to her restrictions, and therefore management allowed her to carry the last two hours of her
route and “Case” during this time. Id. at 197. The second Supervisor of Customer Services
averred that there were simply no other available duties within Complainant’s restrictions to
cover eight hours of work. Id. at 204.

Meanwhile, Complainant submitted a Form CA-17, Duty Status Report, dated August 14, 2017,
reflecting that Complainant’s work restrictions limited her lifting/carrying to 20 pounds for one
to three hours; sitting for one to three hours; standing two to six hours, and walking two to six
hours, among other things. Id. at 241. Complainant further maintained that on August 22, 2017,
she was informed that she was going to receive an “Official Count” while on her route on August
23, 2017. Complainant therefore stated that an employee followed her on her route and she
answered the employee’s questions about her route, accordingly. However, the second
Supervisor of Customer attested that there was no "Official Count" administered on August 23,
2017, and that Complainant was not subjected to an "Official Count" as she maintained. Id. at
198-199.

Complainant additionally maintained that on August 29, 2017, the second Supervisor of
Customer Services asked her why it took her longer to complete her route on August 28, 2017. In
answering the second Supervisor of Customer Services, Complainant stated that she told him that
it takes approximately 20-30 minutes in travel time to get to and from her route. Complainant
averred that the second Supervisor of Customer Services informed her that she must be able to
carry her route within management's expectations or she would not be able to work light duty
anymore. In response, the second Supervisor of Customer Services attested that, on August 29,
2017, he explained to Complainant that light duty work has to be productive and that having to
use two carriers on one route was neither productive nor cost effective. Id. at 200. The Manager
of Operations Program Support declared that she did not talk to Complainant on August 29,
2017, but that the second Supervisor of Customer Services informed her that he was going to talk
with Complainant about why “she brought back so much time” the previous day. Id. at 215.

On August 28, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated and subjected her to harassment on the basis of sex (female/pregnancy) when:

1. on July 19, 2017, she was subjected to excessive scrutiny on her route causing her to
leave work early;

2. on August 3, 2017, she was sent home after 30 minutes and was asked to provide medical
documentation;

3. between August 9 and 19, 2017, and ongoing she was not accommodated with eight
hours of work daily;

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4. on August 23, 2017, she was subjected to an "Official Count” that did not represent the
entirety of her route;

5. On August 29, 2017, she was denied union representation; and

6. on August 29, 2017, management told her that she had to meet their standards, or she
would not be able to carry anymore.

On October 12, 2017, the Agency issued a Partial Acceptance/Partial Dismissal of
Complainant’s complaint. Therein, the Agency accepted claims 1-4 and 6 for investigation, but
dismissed claim 5 for the failure to state claim.2

Following 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). 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.

The Agency initially found that Complainant failed to establish a prima facie case of
discrimination based on her sex (pregnancy). The Agency also, assuming without finding, that
Complainant established a prima facie case of discrimination, found that it articulated legitimate,
nondiscriminatory reasons for its actions. The Agency moreover found that Complainant failed
to show that its reasons were pretext for discrimination based on her pregnancy. The Agency
lastly found that Complainant did not establish she was subjected to a hostile work environment,
as its conduct did not create a hostile, abusive, or offensive work environment.

CONTENTIONS ON APPEAL

Complainant did not file a brief on appeal. The Agency asserts that the Agency’s decision fully
addressed all of the relevant issues.

2 We find that the Agency properly dismissed claim 5 for the failure to state a claim. The
Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596
(July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for
Complainant to have raised her challenges to being denied union representation is through the
collective bargaining agreement.

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STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Disparate Treatment (Claims 2 and 3)3

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once a complainant has established a prima facie case, the burden of
production then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, the burden reverts to the complainant to demonstrate by a preponderance of the
evidence that the agency's reason(s) for its action was a pretext for discrimination. At all times,
the complainant retains the burden of persuasion, and it is her obligation to show by a
preponderance of the evidence that the agency acted on the basis of a prohibited reason. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S.
711, 715-716 (1983).
Further, we note that the Pregnancy Discrimination Act (PDA) requires that an agency treat
women affected by pregnancy, childbirth, or related medical conditions the same for all
employment-related purposes, as other persons not so affected but similar in their ability or
inability to do work. 42 U.S.C. § 2000e(k) (1994). Thus, a complainant alleging that the denial of
an accommodation for a pregnancy-related condition constituted disparate-treatment sex
discrimination may state a prima facie case by showing that: (1) she belongs to the protected
class; (2) she sought accommodation; (3) the agency did not accommodate her; and (4) that the

3 We note that the Agency, in its decision, addressed all of Complainant’s claims under disparate
treatment in addition to a hostile work environment theory. We however find that claims 1, 4,
and 6 are more appropriately addressed under a hostile work environment theory.
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agency did accommodate others “similar in their ability or inability to work.” Young v. United
Parcel Service, 575 U.S. at 229, 135 S. Ct. at 1354 (2015).
An agency may then seek to justify its refusal to accommodate the complainant by relying on
“legitimate, nondiscriminatory” reasons for denying her accommodation. Id. at 1354 (citing,
McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)). “That reason normally cannot consist
simply of a claim that it is more expensive or less convenient to add pregnant women to the
category of those (‘similar in their ability or inability to work’) whom the employer
accommodates.” Id. The complainant may then show that the agency's reasons are pretextual,
which can be done “by providing sufficient evidence that the employer's policies impose a
significant burden on pregnant workers, and that the employer's ‘legitimate, nondiscriminatory’
reasons are not sufficiently strong to justify the burden, but rather--when considered along with
the burden imposed--give rise to an inference of intentional discrimination.” Young, 135 S. Ct. at
1354.
In this case, during the relevant time period, Complainant was pregnant and informed the
Agency of her pregnancy. Complainant additionally sought accommodation for her pregnancy.
The Agency however failed to provide Complainant with an accommodation for a full eight
hours a day, resulting in Complainant being forced to leave work early on many days. As a
result, Complainant was forced to utilize Leave Without Pay (LWOP) in lieu of sick leave for the
time in which she was sent home from work early.4 Complainant also cites to three female
employees who were not pregnant and were allowed to fully perform the duties of their City
Carrier positions. Complainant however does not cite to any comparator employees who could
not fully perform the duties of the City Carrier position and who were accommodated. Therefore,
we find that Complainant has not established prong 4 of a prima facie case of pregnancy
discrimination.
Moreover, we find that the Agency provided legitimate, nondiscriminatory reasons for its
actions. Specifically, in addressing claim 2, the Manager of Customer Service averred that
Complainant was sent home on August 3, 2017, to ensure Complainant’s safety because her
medical documentation did not support that she suffered from a “stress related issue” when she
left work on July 19, 2017. With respect to claim 3, the second Supervisor of Customer Services
explained that Complainant was unable to perform her entire route due to her restrictions, and
therefore management allowed her to case and work the last two hours of her route during this
time. The second Supervisor of Customer Services averred that there were simply no other
available duties within Complainant’s restrictions to cover eight hours of work.

Upon review, we find that Complainant has failed to establish that the Agency’s legitimate,
nondiscriminatory reasons for its actions were pretext for discrimination based on her pregnancy.

4 Complainant entered into a grievance settlement with the Agency on September 11, 2017,
wherein the Agency agreed to compensate Complainant for the hours of work she missed from
August 9, 2017, through August 29, 2017.
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Specifically, there is no dispute that Complainant was unable to finish her route on July 19,
2017, and she returned with undelivered mail due to stress and anxiety, which caused her to
experience pregnancy related contractions. The record reflects that when Complainant attempted
to return to work on August 3, 2017, she did not submit medical documentation clearing her to
return to work. In addition, we note that Complainant’s medical restrictions limited her
lifting/carrying to 20 pounds for one to three hours; sitting for one to three hours; standing two to
six hours; and walking two to six hours, among other restrictions. Based on these restrictions, the
Agency believed that Complainant could not safely perform the duties of her position for a full
day. As such, the Agency allowed Complainant to case and carry the last two hours of her route
during this time. We note that Complainant has not cited to any other duties that were available
within her restrictions that she could have performed during the relevant time.

Hostile Work Environment (Claims 1-4, and 6)
To establish a claim of 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 classes; (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).
Upon review, we find that Complainant has not shown that the Agency actions were severe or
pervasive enough to rise to the level of a hostile work environment. For example, while the
Supervisor of Customer Services may have instructed Complainant in a loud and aggressive
manner on July 19, 2017, we note that 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 v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In addition, we find that the
second Supervisor of Customer Services’ conversation with Complainant on August 29, 2017,
simply did not rise to the level necessary to establish a hostile work environment. We also note
that management officials denied that Complainant was subjected to an Official Count, as
alleged. Even assuming, without finding, that Complainant was subjected to such an Official
Count, there is simply no evidence reflecting that Complainant’s allegations amounted to a
hostile work environment or were motivated by unlawful discriminatory animus. Even
considering the complaint as a whole we find that Complainant failed to establish a
discriminatory, hostile work environment.
CONCLUSION

We AFFIRM the Agency’s final decision.

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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

January 8, 2020
Date