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

Equal Employment Opportunity Commission

Apr 1, 2015

0120132511 (E.E.O.C. Apr. 1, 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
(Southeast Area),
Agency.

Appeal No. 0120132511

Hearing No. 510-2013-00058X

Agency No. 1H-301-0036-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
May 22, 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 Maintenance
Support Clerk at the Agency’s Processing and Distribution Center in Atlanta, Georgia. On
June 22, 2011 (and amended on September 12, 2011), Complainant filed an EEO complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (African-American), national origin (American), sex
(female), and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, she was denied holiday scheduling premium in January 2011; she was
denied sick leave and holiday work in February 2011; her leave slips were not returned in a
timely manner in March 2011; she was labeled a “troublemaker” after her manager talked to
her in a demeaning manner, made offensive comments, and interrogated her in front of her
colleagues; her clock rings were not properly recorded or were deleted in June and July 2011;
on July 23 and 24, 2011, she was charged absence without leave (AWOL); and she was denied
schedule changes.

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Initially, the Agency dismissed the complaint finding that that Complainant did not complete
and return her affidavit to the investigator. Complainant appealed and, in Complainant v. U.S.
Postal Serv., EEOC Appeal No. 0120120916 (Apr. 18, 2012), the Commission reversed the
dismissal and remanded the matter for further processing.1

At the conclusion of the
investigation of the remanded 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 EEOC
Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew her
request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).
In the FAD, the Agency initially noted once more that Complainant failed to provide an
affidavit in support of her complaint. Next, the Agency determined that the alleged incidents
were not sufficiently severe or pervasive to establish a hostile work environment. Further, the
Agency found that management articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, as to the January and February 2011 holiday pay and leave issues,
record evidence indicated that Complainant was paid holiday premium pay, her leave was
granted after she resubmitted a correctly completed leave request form, and she was not denied
sick leave as she was charged Office of Workers’ Compensation Programs (OWCP) leave for
her absence. The Agency found that there was no evidence that Complainant was treated
differently as to her leave requests as they were all granted.

Regarding her claim that her leave slips were not returned timely, the record evidence revealed
that Complainant had placed leave slips in her manager’s (M1) box which he did not observe
right away. Once M1 was made aware of the leave slips, the leave slips were returned and
approved with no adverse impact on Complainant with the delay in their return. As to her
clock rings, testimony and record evidence indicated that M1 inadvertently input clock rings
which were subsequently deleted, and timekeeping corrected the clock rings to reflect
Complainant’s accurate time.

With respect to Complainant’s claim related to M1’s treatment of her, M1 denied demeaning
Complainant. M1 stated that Complainant told him that she did not want him to give her
instructions on the workroom floor, but it was his practice to speak to all employees about
Agency business in the same manner and not necessarily in private. M1 denied that he
discussed Complainant’s private business in front of anyone. M1 averred that he was not
aware of anyone referring to Complainant as a troublemaker.

As to the AWOL charges, M1 stated that Complainant was scheduled for work on July 23 and
24, 2011, but she failed to report for duty or report her absence. As a result, M1 charged her

1 In addition, the Commission found that the Agency failed to address Complainant’s claim that
she was denied official time as a separate claim and remanded the matter for an investigation
and a final decision. The Agency completed a supplemental investigation regarding the official
time claim and issued a FAD finding that management had provided Complainant a reasonable
amount of official time. The Commission subsequently affirmed the FAD on appeal. See
Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122902.
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AWOL. Finally, regarding the denial of schedule changes, M1 explained that on occasion, it
was not efficient or cost effective to grant a schedule change. M1 added that he had had many
discussions with Complainant about schedule changes, and he had granted her requests on
many occasions. M1 stated that schedule changes were granted whenever there was not a
conflict with work that needed to be completed.

The Agency concluded that Complainant failed to show that the alleged incidents were based
on discriminatory or retaliatory animus. As a result, the Agency found that Complainant had
not been subjected to discrimination, reprisal, or a hostile work environment as alleged.
Complainant filed the instant appeal without submitting any arguments or contentions in
support.

ANALYSIS AND FINDINGS
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a work environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on her protected classes, she was subjected to a hostile
work environment. Complainant has cited incidents where Agency management took actions
which seemed adverse or disruptive to her. The Commission finds, however, that the alleged
incidents are not sufficiently severe or pervasive as to rise to the level of objectively
unreasonable behavior that would trigger a violation of Title VII.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that any of the alleged incidents were based on
discriminatory animus. For example, as to her claim related to not receiving holiday
scheduling premium, M1 stated that he submitted a pay adjustment after Complainant
represented to him that she improperly did not receive holiday premium pay. ROI, at 186.
M1 later learned that Complainant had already received holiday premium pay after reviewing
the Time and Attendance Collection System (TACS). Id. As to her claim that her January 25,
2011 leave request was denied, M1 stated that he initially denied Complainant’s request
because it was inaccurate. Id. at 187. M1 confirmed that he approved her corrected leave
request. Id.
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Regarding her February 2 and 3, 2011 sick leave requests, M1 affirmed that Complainant
submitted requests for “sick leave injured-on-duty.” ROI, at 188. M1 stated that he entered
the leave in the system this way; however, the TACS office deleted the clock rings and
changed the leave to “OWCP regular.” Id. M1 noted that the system showed an error based
on how Complainant called in her absence and the TACS office made the adjustment. Id. M1
added that all employees’ leave requests were handled the same way and Complainant was
treated no differently. Id. at 188-89. With respect to Complainant’s claim that M1 failed to
return her leave slips timely, M1 stated that he was in training for a period of time in March
2011, and he handled her leave slips when he returned. Id

. at 191. M1 noted that
Complainant suffered no negative consequences.
M1 denied talking to Complainant in a demeaning manner or discussing her private issues in
front of co-workers. M1 averred that he only talked about Agency business with Complainant
in front of others such as instructions or information about her schedule changes, but he did
this with every employee. ROI, at 192. M1 stressed that he could not bring every employee
to the office whenever he needed to speak with them. Id

.
As to Complainant’s claim that she was denied holiday work, M1 stressed that Complainant
was not denied holiday work and was paid eight hours of holiday pay for February 19, 2011.
ROI, at 190. With regard to her clock rings, M1 explained that he made an error in inputting
Complainant’s clock rings, but someone in timekeeping corrected the mistakes in the system.
Id. at 179. As to the AWOL charges, M1 stated that he charged Complainant with AWOL
because she was scheduled to work on July 23 and 24, 2011, but she failed to report as
scheduled and failed to call to report her absence. Id. at 180. Finally, with respect to the
denial of schedule changes, M1 confirmed that he had many conversations with Complainant
about schedule changes and he often granted her requests. Id. at 181. M1 maintained that he
denied Complainant’s schedule change requests when it was not efficient, cost effective, or
where there was a conflict with work that needed to be completed. Id

.
As Complainant chose to withdraw her hearing request, 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. The
Commission finds that Complainant failed to present any evidence that discriminatory or
retaliatory animus motivated the incidents at issue. Finally, to the extent that Complainant is
alleging disparate treatment with respect to her claims, the Commission finds that she has not
shown that the Agency’s reasons for its actions were a pretext for unlawful discrimination or
reprisal. Accordingly, the Commission finds that Complainant was not subjected to
discrimination, 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
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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:

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.
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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 1, 2015