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

Equal Employment Opportunity Commission

Apr 15, 2015

0120131010 (E.E.O.C. Apr. 15, 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. 0120131010

Agency No. 4J-481-0136-11

DECISION
On December 31, 2012, Complainant filed an appeal from the Agency’s December 3, 2012
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., 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 for de novo review pursuant to 29 C.F.R.
§ 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND
Complainant worked as a City Carrier at Fenkel Station in Detroit, Michigan. On November
15, 2011, she filed an EEO complaint in which she alleged that two Customer Service
Supervisors (S1 and S2) and two Customer Service Managers (M1 and M2) had discriminated
against her on the bases of sex (female), religion (Non-Denominational), disability, age (51),
and in reprisal for prior protected EEO activity over a nine-month period between July 2011
and March 2012. The complaint comprises 24 incidents, which fall into three broad claims:
disciplinary action; denial of privileges; and harassment. At the conclusion of the ensuing
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. 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), in which it concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

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Complainant alleged that S1, S2, and M1 subjected her to a number of discriminatory
disciplinary actions in July, October, and November of 2011. In July 2011, S1 issued
Complainant a letter of warning followed by a 7-day suspension, on which M1 concurred. IR
150, 152. The reason cited in the notices of the two actions was poor work performance. S1
averred that Complainant had been slow in casing mail, which caused her to leave late on her
delivery route and return late. IR 165-66, 210-16, 285, 287, 353-57. In October and
November 2011, S2 issued Complainant a letter of warning and a 7-day suspension, followed
by a 14-day suspension for failure to be regular in attendance, failure to follow instructions,
and refusing to obey orders, respectively. IR 182-85, 187, 234-37, 243, 312, 314-16, 388,
394-95, 398, 401-03. As a result of the negotiated grievance procedure, all of these
disciplinary actions were reduced to official discussions. IR 228, 234, 238, 243, 266.

Complainant also alleged that on various unspecified dates, M1, M2, S1, and S2 denied or
withheld employment benefits and privileges from her, including overtime, the opportunity to
speak with a union steward, workers’ compensation (CA-7) and other administrative forms,
use of the back door, and limited duty, IR 170-72, 189, 194-99, 201, 204. With regard to
overtime, M1, S2, and a Letter Carrier, who was called as a witness, testified that
Complainant was receiving unauthorized overtime because of her late deliveries and was not
needed on her non-scheduled day. IR 274-75, 309-10, 327. As to the union steward situation,
S2 testified that he allowed employees to meet with their union representatives, but only after
they completed their duties, in order that unnecessary overtime not be incurred. IR 317.
Concerning Complainant’s CA-7, M1 stated that Complainant needed to stay within her chain
of authority and get the form from her immediate supervisor. IR 278-79. Regarding a
disability insurance form which Complainant alleged that S2 refused to complete, S1 stated that
the Human Resources Office initially instructed him not to do so, but later changed their
position and told him that it was okay to do so. IR 322-23. With respect to S2’s alleged
refusal to sign an undelivered mail report, S2 averred that he instructed Complainant to write
down only the amount of undelivered mail and no other statements, but that Complainant
refused to do so. IR 321. Concerning use of the back door, M1 testified that the door in
question was an emergency door that was not to be used for any other purpose. IR 280. As to
the alleged denial of a limited duty assignment, S2 averred that on January 20 and 21, 2012, in
accordance with medical restrictions that precluded Complainant from delivering mail on those
dates, S2 gave Complainant a limited duty assignment which consisted of setting up the route,
which was all that was required of her. S2 maintained that Complainant was allowed to work
the limited duty assignment that had been approved, but no more. IR 320.

Finally, Complainant alleged that on numerous unspecified dates, M1, M2, S1, and S2
harassed her by micromanaging her work performance, monitoring her deliveries, writing her
up, threatening and sabotaging her, interacting with her in a belittling and unprofessional
manner, and failing to investigate her claims of a hostile environment. IR 150-53, 156-68,
176, 191. In support of her claim, she provided letters from customers along her route who
stated that they were happy with Complainant as their carrier and that they had witnessed
Complainant being followed and harassed by supervisors. IR 229-33. M1, M2, S1, and S2 all
averred that they routinely made observations of their employees, both in the office and on the
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street, that Complainant’s performance was chronically deficient, particularly with regard to
casing and mail delivery, and that what Complainant characterized as harassment were the
instructions given to her by her supervisors and managers in an effort to help her improve her
performance. IR 266-71, 273-74, 276, 288-92, 297-300, 302, 307-09, 311, 318-19.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order prevail on her claims of disparate treatment, Complainant
would have to prove, by a preponderance of the evidence, that S1, S2, M1, and M2 were
motivated by unlawful considerations of her sex, religion, disability, age, and/or previous EEO
activity when they disciplined her and took the other actions at issue in her complaint. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the
form of discriminatory statements or past personal treatment, comparative or statistical data, or
unequal application of Agency policy. Richardson v. United States Postal Service, EEOC
Appeal No. 01912009 (August 29, 1991). It can also take the form of a deviation from
standard procedures without explanation or justification. Hovey v. Department of Housing
and Urban Development

, EEOC Appeal No. 01973965 (August 31, 2000).
S1, S2, M1, and M2 articulated legitimate and nondiscriminatory reasons for the disciplinary
actions and other actions they had taken vis-à-vis Complainant. Their affidavit testimony was
corroborated by contemporaneously prepared memoranda documenting the various incidents.
While Complainant asserts that the conduct of S1, S2, M1, and M2 was discriminatory, she
has not presented any sworn statements from other witnesses or documents that contradict the
explanations provided by those officials or call their veracity into question. It is Complainant’s
burden to establish the existence of an unlawful motivation on the part of the responding
management officials by a preponderance of the evidence, and more is required to meet that
burden than merely expressing one’s belief. We therefore find, as did the Agency that
Complainant failed to satisfy her burden of proof as to the existence of discrimination with
respect to the disciplinary actions and the various incidents that allegedly involved the
withholding of employment benefits and privileges.

To prevail on her claim of discriminatory harassment, Complainant would have to prove,
again, by a preponderance of the evidence, that because of her sex, religion, disability, age, or
previous EEO activity, she was subjected to conduct so severe or pervasive that a reasonable
person in Complainant’s position would have considered it hostile or abusive. See Harris v.
Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service, EEOC Appeal
No. 01972699 (Aug. 14, 1998). Only if Complainant satisfies her burden of proof with respect
to both of those elements, hostility and motive, will the question of Agency liability present
itself. See Complainant v. Department of Transportation (Federal Aviation Administration)

,
EEOC Appeal No. 0120131581 (July 18, 2014).
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Every one of the incidents cited by Complainant as an exemplar of harassment was in actuality
an example of the efforts by M1, M2, S1, and S2 to track and monitor Complainant’s
performance in the hopes of fostering improvement. As such, they involved routine work
assignments, instructions, and admonishments which, in general, do not rise to the level of
discriminatory harassment. See Bass v. United States Postal Service, EEOC Appeal No.
0120082167 (July 30, 2010). None of these incidents, either singly or collectively, are severe
or pervasive enough to rise to the level of abuse on par with a racial slur or to otherwise
constitute harassment. Quinones v. Department of Homeland Security

, EEOC Appeal No.
01A53109 (March 31, 2006).

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s finding of no discrimination.

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).
0120131010

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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

(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
April 15, 2015