Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

May 7, 2015

01-2013-2583-0500 (E.E.O.C. May. 7, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120132583

Hearing No. 460-2011-00034X

Agency No. 1G-772-0050-10

DECISION
On June 27, 2013, Complainant filed an appeal from the Agency’s May 23, 2013 final order
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

. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk, PS-7, at an Agency work facility in Houston, Texas. On July 29, 2010, Complainant
filed a formal complaint wherein she claimed that the Agency discriminated against her on the
bases of her race (African-American), sex (female), and in reprisal for her prior protected
EEO activity when:

1. On May 27, 2010, Complainant received an investigative interview which resulted
in a seven-day suspension dated June 17, 2010, for Failure to Follow Instructions;
and

2. On May 27 and May 31, 2010, derogatory comments were uttered to Complainant
by her Supervisor.1

1 Complainant also had claimed discrimination with regard to an investigative interview that led
to a Letter of Warning, issued on June 11, 2010. The Letter of Warning was reduced to a

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At the conclusion of 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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision on May 14, 2013.

Claim (1) arose from when Complainant was assigned to DBCS #37 to process Automation
Mail. Complainant reported a potential safety hazard concerning the trays. The Supervisor
provided inserts and twice instructed Complainant and her partner to use inserts for full letter
trays to prevent having to stack the trays three rows high on top of the letter tray rack. The AJ
stated that Complainant disregarded the Supervisor’s instructions and refused to use the inserts
that had been provided. Complainant claimed that she received an injury due to working the
trays without the inserts. During an investigative interview, Complainant was questioned as to
why she did not utilize the inserts as instructed by the Supervisor. Complainant responded, “I
thought you were talking to my partner and not me.”

The AJ dismissed claim (1). The AJ noted that Complainant filed a grievance concerning the
seven-day suspension. The grievance was denied at Step 1 and subsequently on April 21,
2011, the Union and the Agency entered into a settlement whereby the seven-day suspension
would be reviewed by June 19, 2011. The agreement provided that if the suspension has not
been cited in subsequent discipline it will be reduced to a discussion. The agreement further
provided that it is understood by Complainant that the agreement is a full and complete
settlement of all outstanding EEO … complaints …. filed by Complainant or on Complainant’s
behalf relating to any matters that gave rise to the grievance.

With respect to claim (2), the AJ found that no discrimination occurred when Complainant’s
Supervisor allegedly uttered derogatory comments to Complainant. The AJ stated that
Complainant failed to establish a prima facie case of discrimination. According to the AJ,
Complainant failed to identify similarly situated comparisons who were treated more favorably.
Assuming arguendo that Complainant established a prima facie case of discrimination, the AJ
found that the Agency articulated a legitimate, nondiscriminatory reason for its actions.

Among the remarks cited by Complainant were that the Supervisor stated Complainant did not
acknowledge the Supervisor, that the Supervisor continuously told Complainant how bad her
attitude is and that she was not going to put up with it and that she is everywhere and
Complainant will have to put up with her because she will supervise Complainant. The AJ
noted that Complainant explained that race was a factor in the remarks given that she had not
heard the Supervisor make derogatory comments to non-African Americans under her

discussion through the grievance process. The Agency subsequently dismissed this claim on
August 17, 2010, pursuant to 29 C.F.R. § 1614.107(a)(1). This dismissal is not being
challenged on appeal and will not be addressed further in this decision.
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supervision. The AJ further noted that Complainant stated she did not believe her sex was a
factor in the derogatory comments being made.

The AJ found that the alleged derogatory comments did not constitute an adverse employment
action. The AJ observed that Complainant did not establish that these comments caused
personal harm to a term, condition, or privilege of her employment. The Agency subsequently
issued a final order wherein it implemented the AJ’s decision.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that there is no evidence to support a finding that she
knowingly or voluntarily entered into the Pre-Arbitration Agreement and no evidence that she
signed the agreement. Complainant maintains that neither Labor Relations nor the Union
Representative had authority to act on her behalf and bind her to the Pre-Arbitration
Agreement. Complainant argues that the Pre-Arbitration agreement does not contain any mark
that can be reasonably interpreted as her signature and that it does not contain a signature line
labeled with her name.

In response, the Agency asserts that prior to the instant complaint, Complainant had not
engaged in any EEO activity. The Agency states that Complainant has filed two grievances but
that she did not claim race or sex discrimination in either grievance. With regard to the merits
of the seven-day suspension, the Agency points out that Complainant did not deny that she was
present when the instructions were twice given. The Agency maintains that Complainant
provided no basis for any belief on her part that the Supervisor’s instruction would have
applied only to her partner and not to her. The Agency notes that Complainant argues that
discipline was not issued to the three other clerks working on the machine, an Asian male, a
Hispanic female, and a Caucasian male, respectively. The Agency acknowledges this is true,
but states that two of the comparisons had only been sent to the machine to assist for about ten
minutes. The Agency further states that Complainant was the only one of the clerks who
suffered a preventable injury as the result of failing to follow the Supervisor’s safety
instructions. As for the claim concerning the derogatory comments, the Agency asserts that a
supervisor is within his or her rights to make comments necessary to command an employee’s
respect and cooperation in the work place.

ANALYSIS AND FINDINGS
With regard to the claim concerning the seven-day suspension, the AJ based her dismissal of
the claim on the settlement of the grievance between the Agency and the Union. Complainant
has not presented any evidence that the Union was not her proper representative in this matter,
that it clearly acted contrary to her interests, or that she was not bound by its representation of
her. There is no basis for negating the settlement of the seven-day suspension and thus no
justification to reverse the dismissal of claim (1).

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As for the alleged derogatory comments directed at Complainant by her Supervisor, we find
that the comments at issue were not of sufficient severity or pervasiveness to constitute
harassment. The Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 7, 2015