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

Equal Employment Opportunity Commission

Nov 6, 2019

0120182789 (E.E.O.C. Nov. 6, 2019)

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

Allene R.,1
Complainant,

v.

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

Appeal No. 0120182789

Hearing No. 480201700735X

Agency No. 4F920005117

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 1,
2018 Final Order concerning an 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Carrier Technician, T-6, at the Beaumont Post Office, located in Beaumont, California.

On April 3, 2017, Complainant filed an EEO complaint alleging discrimination and harassment
by the Agency on the bases of race (Asian), national origin (Laos), sex (female), and reprisal
(prior EEO activity) when:

1. On December 15, 2016 her manager yelled at her, causing her to use 2 days of
sick leave because of anxiety, and

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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2. On December 19, 2016 she was told by Management she would never be used as
a 204B (Acting Supervisor Detail).

After its investigation into the complaint, 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 (“EEOC” or “Commission”) Administrative Judge
(“AJ”). Complainant timely requested a hearing. An AJ was assigned, and the parties were
provided an opportunity to engage in discovery. The Agency submitted a Motion for a Decision
Without a Hearing (summary judgment). Complainant objected, arguing that the Agency did not
respond to her discovery requests. The AJ granted the Agency’s Motion, issuing a decision by
summary judgment in favor of the Agency on July 17, 2018.

The record includes the following undisputed facts:

Complainant’s first level supervisor was a Supervisor, Customer Service, EAS-17, (“S1,”
Hispanic, American, male, prior EEO activity not specified). Her second level supervisor was the
Postmaster, EAS-21, (“PM,” Mexican American, American, male, prior EEO activity not
specified). Complainant named PM and S1 as responsible management officials (“RMOs”) in
her prior EEO complaint, initiated on February 12, 2016. That matter was resolved via
settlement agreement on April 19, 2016, signed by both S1 and PM.

On December 15, 2016, Complainant accidentally delivered a package to the wrong address. The
intended recipient’s neighbors delivered the package to the correct address. Complainant states
that as a result of the mistake, “[PM] became furious at me and yelled at and belittled me” over
the phone in front of S1. Complainant was so upset from PM’s phone call that she took
unscheduled sick leave for the rest of the day, and all day on December 16, 2016. Complainant
alleges that PM does not yell at the other carriers when they make the same mistake. In addition,
she alleges that PM told her to bring in a doctor’s note, even though other carriers were not
required to do so when they used unscheduled sick leave.2 Both PM and S1 state that they do not
recall the phone call alleged in Claim 1.

On December 19, 2016, Complainant alleges that PM further belittled her by telling her that she
“would never be used as a 204-B” in front of her coworkers. PM was responsible for assigning
204-B details and providing 204-B/management training to letter carriers and carrier technicians.
For context, we note that Provision 1 of the April 19, 2016 Settlement Agreement resolving her
prior EEO complaint stated: “[Complainant] will be allowed to prepare for the 204-B position
and will be given criteria and expectations for applying for this position.” On April 19, 2016,
Complainant provided PM with a formal written request for 204-B/Management Training.
According to Complainant, during the relevant time frame for the instant complainant, she was
still waiting for PM to provide her with a 204-B opportunity.

2 Complainant raised this matter in a grievance, which was resolved at the Step A level, where
Complainant’s $35.00 co-pay was reimbursed by the Agency.
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The Agency subsequently issued a Final Order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

In order 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. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory animus.

Discovery Requests

On November 2, 2017, the assigned AJ issued an “Acknowledgement and Order” to
Complainant and the Agency, which, among other things, provided detailed explanations and
instructions for engaging in discovery to further develop the record. See 9 C.F.R. § 1614.109(d).
Along with the instant appeal, Complainant provides copies of her discovery requests, dated
November 18, 2017, however, she offers no evidence, such as a signed certified mail receipt,
establishing that the Agency received them.

Complainant’s primary argument on appeal is that had the Agency honored her discovery
requests, she would have the necessary evidence to preclude Summary Judgment, and that the AJ
erred by failing to consider this. We find that Complainant was on notice, from the AJ’s
November 2, 2017 Acknowledgement and Order, that the Agency was obligated to honor her
discovery requests, and that it must respond within 30 calendar days of receipt of the requests. In
the event this did not occur, the Acknowledgement and Order provided:

Discovery motions, including motions to compel, must be filed within ten (10)
calendar days after receipt of a deficient response or after the response to the
discovery is due, whichever occurs first…. Rulings will be made based upon the
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written submissions. The failure to timely file objections to discovery may result
in the objections being deemed waived.

Assuming, for the sake of argument, that the Agency received Complainant’s requests on
November 18, 2017, the deadline to respond would fall on December 18, 2017. As the Agency
did not respond, the deadline for Complainant to file a Motion to Compel with the AJ fell on
Monday, December 30, 2017. The Acknowledgement and Order also provided that “Discovery
shall be completed within ninety (90) calendar days from the date of receipt of this Order unless
otherwise directed by the AJ,” which fell on or about January 31, 2018.

Complainant did not notify the AJ of her unanswered discovery requests until February 27, 2018,
in her Response to the Agency’s Motion for a Decision Without a Hearing. The AJ noted in her
Decision that Complainant did not file a Motion to Compel regarding discovery, and opted not to
consider Complainant’s arguments that relied on a discovery response from the Agency. We
find the AJ acted within her discretion, and Complainant waived her discovery right when she
did not file a motion to compel.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

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The Agency, as an employer, has the discretion to determine how best to manage its operations
and may make decisions on any basis except a basis that is unlawful under the discrimination
statutes. Furnco, supra; Nix v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th
Cir. 1984). An employer is entitled to make its own business judgments. The reasonableness of
the employer's decision may, of course, be probative of whether it is pretext. The trier of fact
must understand that the focus is to be on the employer's motivation, not its business judgment.
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979).

Complainant alleges disparate treatment for Claim 1, comparing PM’s reaction to her error in
delivering to the incorrect address as harsher than his reactions to the same errors made by
coworkers outside her protected classes. However, the alleged discriminatory action, “belittling,”
describes harassment (as opposed to an employment action), and is properly analyzed as a hostile
work environment claim in the next section.

To the extent Claim 2 alleges Complainant was denied 204-B opportunities (a type of
employment action), PM’s legitimate nondiscriminatory explanation is that the allegation is
untrue. Both PM and S1 testify that they did not recall an incident where he told Complainant
she would “never” be used as a 204-B, and PM argues he would not have made that comment, as
he trained Complainant for several days for a 204-B Detail since September 19, 2016, and that he
planned to give her “the opportunity for more training at the proper time.” A Supervisor,
Customer Services, EAS-17 (“S2,” male, Hispanic, Mexico, prior EEO activity not specified)
testified that Complainant had been used as an Acting Supervisor “as needed.” S2 acknowledged
that Complainant told him that she felt PM discriminated against her based on her protected
classes, but testified that he was unaware of her prior EEO activity, as he was not her direct
supervisor.

Significantly, a “Higher Level Report” generated by the Agency for the record establishes that
Complainant was assigned as a 204-B Acting Supervisor, EAS-17, for three days during the
week of November 19, 2016 (identified in the record as pay period 24, week 2). Complainant
does not address the veracity of the Report, but, identifies three similarly situated comparator
employees (“C1,” “C2,” and “C3”) with less seniority than her, yet who PM provided 204-B
training and assignments, prior to offering the same opportunities to Complainant. Complainant
cites her April 19, 2016 written request and alleges she made multiple verbal requests that went
ignored by PM.

The “Higher Level Report” shows that in 2016, C1 (Caucasian, unknown national origin, female,
no EEO activity) held 204-B details for a total of 7 days (pay period 03) between January 23 and
February 5, 2016 and 3 days the week of August 13, 2016 (pay period 17, week 2). PM explains
that C1 had already been trained at the Agency’s facility in Redlands, California, where she
served an 8 month 204-B detail, and that she also held a detail as Officer in Charge at the
Agency’s Calimesa, California facility. PM testified that given her experience, it made “business
sense to use [C1] as a 204-B in Beaumont.”

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PM testified that he provided 204-B training to C2 (Hispanic, Mexican, male, no EEO activity),
and C3 (white, unknown national origin, male, no EEO activity) prior to training Complainant
because they requested training before she did. The “Higher Level Report” reflects that C2 was
detailed as a 204-B for four days the week of March 5, 2016 (pay period 06, week 1) and four
days the week of September 24, 2016 (pay period 20, week 2). The Report further reflects that
C3 was not assigned a 204-B detail in 2016. Complainant submitted a formal request for training
on April 19, 2016, and, according to PM, received some 204-B training in September 2016.
Alternately, PM explained that he considered accident reports when assigning 204-B details, and
Complainant had been involved in an at fault accident five years earlier, which is documented in
the record.

Complainant has not shown that PM’s legitimate nondiscriminatory explanations regarding his
business judgment when deciding to train and/or assign 204-B details to C1, C2, and C3 prior to
doing the same for Complainant, were pretext for discrimination and retaliation. Specifically, we
find Complainant has failed to sufficiently show that the agency's action was unreasonable in
terms of business judgment, and thus, without more, complainant's argument that the agency's
articulated reason was a pretext for discrimination is unproven. On appeal, Complainant has not
offered any evidence or argument indicating a question of material fact exists that would shoe
PM’s explanations were pretext.

Harassment/Hostile Work Environment

It is well-settled that harassment based on an individual’s race, national origin, sex, or in
retaliation for engaging in prior protected activity is actionable. See Meritor Savings Bank FSB
v. Vinson, 477 U.S. 57 (1986). Although Complainant’s membership in protected classes is
undisputed, she has not satisfied the other elements of a prima facie case for a harassment/hostile
work environment, which are necessary for a finding of employer liability. To prove harassment,
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 based on her
membership in one or more protected classes. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself. See Henson v.
City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Sys.
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

A hostile work environment cannot be established through a few isolated incidents. See, e.g.
Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (Jul. 12, 1996) (allegations
that a supervisor had "verbally attacked" a complainant on one occasion, attempted to charge him
with AWOL, and disagreed with the time the complainant entered into a sign-in log, constituted
isolated incidents that did not state an actionable claim of harassment), see also Banks v. Health
& Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995) (allegations that on one
occasion a supervisor threw a file on a complainant's desk and berated her in a loud voice in the
presence of other employees, causing her embarrassment and humiliation, isolated incidents,
insufficient to state a harassment claim).
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Further, the Commission has repeatedly found that remarks or comments unaccompanied by a
concrete agency action usually are not a direct and personal deprivation sufficient to render an
individual aggrieved for purposes of Title VII. For example, the Commission has held that a
supervisor's remarks on several occasions, unaccompanied by any concrete action, were not
sufficient to state a claim. Backo v. United States Postal Serv., EEOC Request No. 05960227
(June 10, 1996).

In the instant case, even when viewing the allegations in Claims 1 and 2 together, and assuming
them to have occurred as alleged, Complainant has not established the elements of hostility and
motive, nor has she shown a question of fact exists regarding hostility and motive, sufficient to
warrant a hearing. PM’s alleged belittling and yelling at Complainant on one instance for making
a mistake, and singling her out in front of coworkers by stating she will “never” get a 204-B
assignment, are too isolated and insufficiently severe to rise to the level of a hostile work
environment. Moreover, neither claim was accompanied by a concrete action.

To the extent Complainant alleges that Claim 2 was accompanied by a concrete action, as she
states she was not provided an opportunity to work as a 204-B supervisor, the record includes
documentation that Complainant was acting supervisor for three days in November 2016. Other
than bald statements, Complainant’s appellate argument offers no evidence to give rise to a
question of fact regarding this record. Again, the isolated nature of the incident, and lack of
evidence of an accompanying concrete action as alleged, do not meet the requisite element of
hostility of a prima facie case warranting a hearing. As she has not met this necessary element
we find it unnecessary to review the final element, discriminatory motive.

Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor. Therefore, upon careful review of
the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we
conclude that the AJ correctly determined that the preponderance of the evidence did not
establish that Complainant was discriminated against by the Agency as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s 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

November 6, 2019
Date