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

Equal Employment Opportunity Commission

Apr 7, 2015

0120132604 (E.E.O.C. Apr. 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
(Great Lakes Area),
Agency.

Appeal No. 0120132604

Agency No. 4J-604-0116-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
May 17, 2013 final Agency decision (FAD) 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Service
Supervisor at the Agency’s Post Office in Bloomington, Indiana. On July 2, 2012,
Complainant accepted a limited duty assignment with restrictions of no lifting more than 10
pounds, no climbing, bending, stooping, twisting, and pulling/pushing. In June 2012, the
Postmaster informed Complainant that she would be assigned to assist in the completion of a
Form 3999, which required walking with a carrier throughout the course of their day and
documenting their activities. Complainant expressed concern that it had been some time since
she had performed that task and requested training. On July 31, 2012, Complainant’s
supervisor (S1) assigned another supervisor (AS) to provide refresher training for
Complainant. Complainant claims that her restrictions were violated during the training as she
had to ride in the back of a Postal truck, climb in and out of the back of the cargo area, and
bend down to get into the job seat. In addition, Complainant alleged that she suffered an
accident that day when her foot slipped on dirt, and she fell injuring her knee, face, nose, lips,
and upper left arm.

On August 10, 2012, S1 and the Postmaster conducted an investigative interview with
Complainant and her representative regarding the accident and other issues, including a rumor
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that Complainant had made a demeaning and offensive comment about a 204B supervisor.
Complainant at one point stood up and stated that “this interview is over.” The Postmaster
informed Complainant that the interview was not over and that she needed to stay and finish
answering their questions. Complainant alleged that she felt bullied and under duress from the
line of questioning and not being allowed to leave for about an hour and 40 minutes.

On August 16, 2012, S1 issued Complainant a Proposed Letter of Warning for failure to
exercise reasonable care in the exercise of her duties for the July 31, 2012 accident. The
record indicates no Letter of Decision was issued regarding the Proposed Letter of Warning.

On October 31, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, her medical
restrictions were violated while she was assigned refresher training; she was subjected to an
investigative interview which lasted nearly two hours while being denied permission to leave
the room by the Postmaster; and she was issued a proposed Letter of Warning.

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. When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Additionally, the Agency found that
management articulated legitimate, non-retaliatory reasons for its actions. Specifically, the
Postmaster stated that he discussed with Complainant that she would be assigned to assist in the
completion of a Form 3399, and she requested training. The Postmaster arranged for
Complainant to be accompanied by AS while a 3999 was completed, retrain her, and provide
necessary assistance and guidance. The Postmaster maintained that neither the refresher
training nor the duty of performing the 3999 violated Complainant’s restrictions and
Complainant did not at any point claim that her restrictions were violated. The Postmaster
confirmed that the ultimate responsibility for not exceeding the medically-imposed restrictions
of her doctor and for not performing any unsafe or hazardous act and for bringing any
concerns that could exist to her manager fell on the employee. AS noted that Complainant
could have ridden with her in her vehicle, or driven her own vehicle, but Complainant made
the decision to ride with the carrier. AS asserted that Complainant made absolutely no
mention that she perceived her medical restrictions were being violated, and she did not know
Complainant had restrictions.

With respect to the investigative interview, S1 stated that the interview lasted approximately
one hour, and Complainant was not prevented from leaving the room. S1 declared that the
purpose of the investigative interview was to determine if any disciplinary action was
warranted due to Complainant's failing to work in a safe manner. The Postmaster added that
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Complainant was questioned on her supervisory role and responsibilities, the specifics of what
led to her tripping and falling, and the inconsistencies of her statements and those provided by
witnesses to the accident. The Postmaster confirmed that Complainant at one point
characterized the interview as ridiculous and said the interview was over. The Postmaster
stated that he informed Complainant that the interview was not over and advised her that the
interview was not over until a manager informed her it was concluded. In addition, the
Postmaster acknowledged that the interview included limited questioning regarding an alleged
demeaning statement that she had made about another supervisor. Finally, the Postmaster
asserted that Complainant’s behavior and her evasiveness and/or unwillingness to answer the
questions posed, contributed to extending the length of the interview.

Finally, regarding the Proposed Letter of Warning, S1 stated he issued it based on his finding
that Complainant failed to exercise reasonable care in the performance of her duties with
respect to the July 31, 2012 accident. The record indicated that no Letter of Decision had been
issued at the time of the issuance of the FAD.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to reprisal or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant claims that she reported management’s actions during the investigative
interview to the Inspector General. Complainant alleges that she witnessed another incident
regarding another supervisor who was disciplined in a similar manner. In addition,
Complainant claims that she has been disciplined and harassed unfairly as documented in
previous complaints. Accordingly, Complainant requests that the Commission reverse the
FAD.

ANALYSIS AND FINDINGS
To prove her harassment claim, 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 taken because of a protected basis, i.e. in this case, her prior protected EEO
activity. Only if Complainant establishes both of those elements, does the question of Agency
liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
Complainant asserted that based on her prior protected EEO activity, management subjected
her to a hostile work environment. Complainant has cited incidents where Agency officials
took actions that seemed adverse or disruptive to her. The Commission concludes that the
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alleged incidents at issue in their totality are insufficiently severe or pervasive to establish a
hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that retaliatory animus played
a role in any of the Agency's actions. For example, there is no evidence showing that
Complainant was forced to work outside of her restrictions during refresher training. AS
confirmed that Complainant was given the option to ride with her in her vehicle, drive her own
vehicle, or ride with the carrier. ROI, at 237. AS stated that Complainant chose to ride with
the carrier in a two-seater vehicle. Id. Complainant did not raise any concerns to anyone
prior to, during, or after the refresher training that she believed that her medical restrictions
were violated. Id. at 205. Complainant suffered an accident while out on refresher training.
Management subsequently held an investigative interview with Complainant to ascertain the
factors contributing to Complainant’s accident/injury and ultimately its root cause, and to
establish actions that would assist in the prevention of further accidents and injuries. Id. at
207. Complainant was questioned on her supervisory role and responsibilities, the specifics of
what led to her tripping and falling, and the inconsistencies of her statements and those
provided by witnesses to the accident. Id. The interview also included limited questioning
regarding an alleged demeaning statement that Complainant had allegedly made about a fellow
supervisor. Id. Finally, Complainant was issued a Proposed Letter of Warning based on the
findings of management’s investigation in which S1 determined that Complainant failed to
exercise reasonable care while performing her duties. Id

. at 174.
The Commission finds that Complainant has not shown that the Agency's reasons for its
actions were a pretext for unlawful reprisal. As a result, the Commission finds that
Complainant has not established that she was subjected to reprisal or a hostile work
environment as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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:

0120132604

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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
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
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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 7, 2015