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

Equal Employment Opportunity Commission

Oct 12, 2018

0120170006 (E.E.O.C. Oct. 12, 2018)

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

Zoila P.,1
Complainant,

v.

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

Appeal No. 0120170006

Hearing No. 440-2016-00105X

Agency No. 4J-606-0112-15

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 August 22, 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, as amended, 42 U.S.C. §
2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a Full-Time City Carrier at the Roger P. McAuliffe Station in Chicago,
Illinois. On November 9, 2015, Complainant filed an EEO complaint in which she alleged that
the Acting Manager of the station (AM), two Acting Supervisors (AS1 and AS2) and the Customer

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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Services Supervisor (CSS) subjected her to harassment and disparate treatment because of her
disability (depression and post-traumatic stress disorder) and in reprisal for prior protected EEO
activity. 2 She identified the following incidents as comprising her claim:

1. On an unspecified date in July 2015, the AM yelled at Complainant, pointing her
pen in Complainant’s face and belittled Complainant in front of her coworkers.

2. On unspecified dates between July and October 2015, Complainant was denied
overtime opportunities.

3. On July 27, 2015, the assignment that Complainant had successfully bid on was
taken away.

4. On September 23, 2015, a supervisor made a racist comment to Complainant and
management did nothing about it.

5. On October 5, 2015, Complainant was charged with leave without pay (LWOP).

6. On October 14, 2015, the AM ordered Complainant to report directly to her if
Complainant needed assistance but allowed Complainant’s coworkers to go to their
own supervisors if they needed assistance.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
but subsequently withdrew her request. 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.

Incident (1): Complainant averred that the AM pointed a pen in her face and belittled her in front
of her coworkers during a service talk held in mid-July 2015. According to Complainant, the AM
said, “do you hear this, is this what the union wanted, do you hear this,” and that the AM was
“violating her personal space.” IR 108-09. The AM denied that she pointed a pen in
Complainant’s face as Complainant had characterized the incident. AM averred that she and
Complainant were meeting in her office regarding some grievances, and that rather than come to
her directly about concerns first regarding potential contract violations and safety issues,
Complainant had contacted the postal inspectors. IR 225.

Incident (2): Complainant averred that on unspecified dates between July and October 2015, she
was denied overtime opportunities that were given to her coworkers. IR 110. The AM, AS1, AS2,
and the CSS all averred that although Complainant was on the overtime desired list, that overtime

2 Complainant withdrew the bases of race, color, sex, and age while the matter was pending before
the EEOC Administrative Judge.
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work was available only to those carriers who were making deliveries out in the street.
Complainant was in a limited duty carrier position that kept her confined to the office and unable
to make deliveries; therefore, she was not given any overtime. IR 227, 246-47, 262-63, 280.

Incident (3): Complainant averred that on July 27, 2015, she was notified by memorandum that
she had to relinquish her bid assignment, pointing out that she had been instructed to bid on the
assignment in 2013. IR 111-112. The memorandum stated that Complainant had not provided
medical documentation by July 6, 2015, indicating that she would be able to fulfill the
requirements of her bid assignment within the next six months. IR 182-86, 321-25. The AM,
AS2, and the CSS all averred that Complainant lost her bid assignment because she had not been
able to show that she could fulfill the duties of the assignments. IR 228, 248, 282-83.

Incident (4): Complainant averred that on September 23, 2015, she asked AS2 what assignment
he wanted her on, and that in response, he pointed at her and two other African-Americans and
said, “you people always throw each other under the bus.” She further averred that when she
reported the incident to the AM, the AM responded that AS2 had “used a bad choice of words,”
but had done nothing else. When asked by the investigator why she believed that the statement
was racist, Complainant responded that it was because AS2 had pointed at African-American
individuals when making the statement. She also averred that there was an investigation of the
incident, but that she was not told of the outcome. IR 114-15. AS2 denied that he was referring
to African-Americans when he used the phrase “you people.” Rather, he averred that he was
referring to the carriers. IR 250. The AM averred that AS2 was in the process of sending a city
carrier assistant to a neighboring station to render assistance, but two individuals who were asked
to go on the detail refused, which prompted AS2 to comment that the carriers were all “throwing
each other under the bus” in order to get out of the detail. IR 231. AS1, who also witnessed the
altercation, corroborated the statements of AS2 and the AM, and averred that he did not perceive
the comment as a racist remark. IR 267.

Incident (5): Complainant averred that on October 5, 2015, she was charged with LWOP. She
stated that she had contacted her immediate supervisor and notified him that she was requesting
sixteen hours of Continuation-of-Pay (COP). She further averred that she had communicated with
the CSS regarding her need for COP, but that the AM still charged her with LWOP. IR 116, 205-
06. The AM averred that although Complainant had requested COP, her request had been denied
by the Office of Workers’ Compensation Programs (OWCP) at the Department of Labor. The AM
also stated that Complainant was given sick leave for the time she had taken off. IR 233, 338.

Incident (6): Complainant averred that on October 14, 2015, the AM made Complainant come
directly to her if she needed anything, but allowed Complainant’s coworkers to go directly to their
own supervisors. She maintained that the AM had told her to give all of her leave requests directly
to her, the AM. She stated that she had no idea why the AM gave her those instructions, asserting
that she did not have an attendance problem. IR 113. The AM responded that since Complainant
was a union steward, she did ask Complainant to come to her if there were any issues on the
workroom floor or if the supervisors under her were violating any rules and regulations so that
those issues could be resolved before they became grievances, IR 230.
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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”).

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 his
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).

To ultimately prevail on her harassment claim, Complainant must prove that the incidents occurred
because of a protected basis. Beyond motive, Complainant must show that the AM, AS1, AS2, or
the CSS had subjected her 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. Since
Complainant has also alleged reprisal, she must prove that actions of the named officials were
harmful to the point that they could dissuade a reasonable person from making or supporting a
charge of discrimination. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
See also EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No.
015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if Complainant satisfies her burden of proof
with respect to all of these elements, motive and either hostility or chilling effect, will the question
of Agency liability for discriminatory or retaliatory harassment present itself.

Complainant established the first element of a claim of harassment by virtue of her membership in
various groups protected under Title VII and the Rehabilitation Act. We would also agree that
conduct of the AM, AS1, AS2, and the CSS in the various incidents identified by Complainant
was unwelcome from her own subjective perspective, which is enough to satisfy the second
element. See Floyd L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr. 27,
2017).

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In order to establish the third element of a claim of discriminatory harassment, Complainant must
show that in taking the actions that comprise her harassment claim, the AM, AS1, AS2, or the CSS
relied on considerations of her disability or previous EEO activity that are expressly proscribed by
the statutes the Commission enforces. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC
Appeal No. 0120142387 (Mar. 29, 2016). As to incident (1), the AM denied making the gestures
that Complainant had accused her of, pointing out that it was Complainant’s act of contacting
postal inspectors before discussing problems with her that had prompted the conversation that took
place in the AM’s office. Regarding incident (2), the AM, AS1, and AS2 all stated that while
Complainant was on the overtime desired list, the only available overtime work was for carriers
who were out on the street making deliveries, and she was not doing this due to the fact that she
was in a limited duty position. Concerning incident (3), the AM, the CSS, and AS2 stated that
Complainant had to relinquish her bid assignment because she did not timely provide them with
the medical documentation establishing that she could perform the duties of her carrier position
within six months. With respect to the “you people” utterance by AS2 on September 23, 2015 in
claim (4), AS2 reiterated that he was referring not to African-Americans, but to the carriers who
were trying to get out of going on a detail to another postal facility. With regard to the LWOP
incident in claim (5), the AM stated that Complainant had been denied COP by the OWCP and
was allowed to take sick leave instead of being charged with LWOP. As to the meeting between
Complainant and the AM that took place on October 14, 2015 alleged in claim (6), the AM sought
to diffuse problems before they became grievances by reassuring Complainant that as the union
steward, Complainant could come to her.

When asked by the EEO investigator why she believed that her race, color, sex, age, medical
condition, or prior EEO activity were factors in the various incident, Complainant responded that
the AM allowed other light or limited duties to work overtime and that male light or limited duty
employees were treated more favorably. IR 110-12, 116-17. Beyond these generalized and
conclusory assertions, however, Complainant has presented neither affidavits, declarations, or
unsworn statements from witnesses other than herself nor documents that expose any weaknesses,
inconsistencies, or contradictions in explanations provided by the AM, AS1, AS2, or the CSS for
the various incidents to such an extent that a reasonable fact finder could rationally find those
explanations unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 (Nov. 20, 2007), req. for recon. den’d, EEOC Request No. 0520080211 (May 30,
2008).

In particular, we agree with the Agency that there was no evidence to suggest that AS2 was
referring to African-Americans when he used the phrase “you people.” In some cases, the intent
of a comment as a racial slur is unmistakable. See Yabuki v. Dep’t of the Army, EEOC Request
No. 05920778 (June 4, 1993) (supervisor of an employee with Japanese ancestry had said while
pointing to the employee that the Japanese were soon going to own the United States). But many
such comments are ambiguous, and must be viewed within the context of the particular workplace
at issue. Martin v. Dep’t of Justice, EEOC Appeal No. 01965338 (March 3, 1998) citing Brooks
v. Dep’t of the Navy, EEOC Request No. 05950484 (June 25, 1996). “You people,” is a comment
that falls within the latter category.

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See e.g. Garcia v. Dep’t of the Treasury, EEOC Appeal No. 07A10040 (Jan 13, 2003) (AJ found
no evidence suggesting supervisor discriminated against complainant based on national origin
when she used the phrase “you people”). Complainant failed to present evidence sufficient to
contradict the explanations from AS1, AS2, and the AM that “you people” referred to carriers who
were trying to avoid having to go on detail to another facility.

We therefore find, as did the Agency, that Complainant has not established the existence of a
discriminatory or retaliatory motive on the part of the AM, AS1, AS2, or the CSS with respect to
any of the incidents at issue. Because Complainant has not established a connection between her
protected status and those incidents, no further inquiry is necessary as to whether they rise to the
level of harassment or constitute separate acts of discrimination under disparate treatment theory.
Tynisha H. v. Dep’t of State, EEOC Appeal No. 0120141395 (Mar. 17, 2017).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

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

October 12, 2018
Date