Zandra N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120142573 (E.E.O.C. Sep. 1, 2016)

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

Zandra N.,1
Complainant,

v.

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

Appeal No. 0120142573

Hearing No. 460-2014-00032X

Agency No. 4G770009713

DECISION

On July 16, 2014, Complainant filed an appeal from the Agency’s July 10, 2014, final decision
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). 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 Memorial Park Station in Houston, Texas. On May 10, 2010, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the bases of disability,
age, and reprisal for prior protected EEO activity when:

1. on March 7, 2012, management made her exceed her medical restrictions;

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.
0120142573

2
2. on March 23 and April 3, 2012, she was observed by her supervisor but when
she asked for a copy of the observation her supervisor told her that she had not
kept anything in writing;
3. on November 26, 2012, she was subjected to an investigative interview;
4. on January 30, 2013, her supervisor yelled at her, and then physically attempted
to prevent her from leaving her case by pushing her clipboard into her stomach
area;
5. on or about July 30, 2013, she was subjected to an investigative interview;
6. on an unspecified date, she was informed that she would attend Remedial Case
Training and be terminated if she did not pass the training; and
7. on August 13, 2013, her manager entered her work space and questioned her in
a loud, aggressive tone.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing but later withdrew the request. By order dated June 2, 2014, the AJ
remanded the matter for a final agency decision. Consequently, 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.

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”).

Claim 1 (Exceeded Medical Restrictions)

Federal agencies must make reasonable accommodation for the known physical and mental
limitations of a qualified disabled employee, unless the agency can demonstrate that
accommodation would prove to be an “undue hardship.” 29 C.F.R. §1614.203(c).
Complainant alleges that she was “made to exceed her medical restrictions,” which prohibited
her from working overtime, when management instructed her to work more than 8 hours on
March 7, 2012. According to the Agency, it did not instruct her to work more than 8 hours on
the day in question. ROI at 254. Complainant does not contend that she actually worked
overtime on that day or that she was disciplined for failing to work. We find that the weight of
the evidence supports the Agency’s position.
0120142573

3

Claims 2,3,5,6,7 (Hostile Workplace Environment Harassment)

It is well-settled that harassment based on an individual's statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily
protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome
conduct related to her membership in those classes or her prior EEO activity; (3) the
harassment complained of was based on those classes or that activity; (4) the harassment had
the purpose or effect of unreasonably interfering with her work performance 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).

Complainant alleges that a series of actions by the Agency, which appear to be efforts by
management to supervise the performance of Complainant’s duties, are discriminatory. She
alleges, for example, that she was “observed” (Claim 2); “interviewed” (Claims 3 and 5);
threatened with testing (Claim 6); and “questioned’ (Claim 7) about how she did her job.
These are common workplace occurrences which do not constitute harassment. See Carver v.
United States Postal Service, EEOC Appeal No. 01980522 (Feb. 18, 2000).

Unless it is reasonably established that the actions were somehow abusive or offensive, and
were undertaken in order to harass complainant on the basis of any of her protected classes,
such everyday events are not sufficiently severe or pervasive to offend the general sensibility
of an individual experiencing such occurrences in the workplace. See Wolf v. United States
Postal Service, EEOC Appeal No. 01961559 (July 23, 1998)); Long v. Veterans
Administration, EEOC Appeal No. 01950169 (Aug. 14, 1997). Here, there is no evidence
that any of the claimed harassing actions undertaken by Agency management were based on
her age, disability or protected EEO activity. There is no evidence of a racist slur or age-
based ridicule that would support an inference of discriminatory animus. Without evidence of
this nature, Complainant’s harassment claim fails.

Claim 4 (Hostile Workplace Environment Harassment Involving Physical Contact between
Complainant and Supervisor)

One of the alleged incidents set forth in the complaint involved a confrontation between
Complainant and a supervisor, during which, according to Complainant, the supervisor pushed
a clipboard into Complainant’s stomach. An incident involving deliberate physical contact
does not necessarily amount to actionable harassment. See, Timbs v. Department of Veterans
Affairs, EEOC Appeal No. 01A44688 (November 8, 2004)(incident where agency physician
grabbed complainant's wrist and screamed at him in front of other employees not severe or
pervasive enough to constitute harassment). In this case, our review of the record persuades us
that the physical contact occurred because of Complainant’s actions, i.e., walking into the
clipboard as she attempted to walk past the supervisor. ROI at 262. Under these
circumstances, the Agency cannot be held liable for harassment.
0120142573

4

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests 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 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
0120142573

5
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

September 1, 2016
Date