Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jan 9, 2015

0120132959 (E.E.O.C. Jan. 9, 2015)

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

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120132959

Hearing No. 440-2012-00024X

Agency No. 1J-609-0018-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 16, 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 (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 final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Dock Clerk at the
Agency’s Chicago Network Distribution Center in Forest Park, Illinois. On January 18, 2011,
the Acting Supervisor (AS1) repeatedly instructed Complainant to release the emergency stop
button on a piece of equipment on which Complainant was working. Complainant refused and
told AS1 in a loud voice that she was “not keying shit.” AS1 repeated the instruction, and
Complainant continued to yell, scream, and curse at AS1. AS1 then instructed Complainant to
leave the workroom floor and report to the tour office. Complainant responded “You go to the
damn office, I'm not going nowhere.” Complainant subsequently left the workroom floor,
retrieved her coat, and submitted a leave request form in which she requested .50 units of
annual leave due to stress. AS1 informed Complainant that she could not leave work.
Nonetheless, Complainant swiped her timecard, ended her tour, and left work without
permission.

AS1 subsequently charged Complainant with absence without official leave (AWOL) for her
unexcused absence on January 18, 2011. Complainant did not report to work on January 19
0120132959

2
and 20, 2011, but called in to report her absence. Neither AS1 nor the Distribution Operations
Supervisor (S1) reported receiving any notification that Complainant had called in to report her
absences as sick leave. AS1 next mailed Complainant an AWOL Inquiry Letter in which she
requested that she submit documentation upon her return to work. Complainant believed that
AS1 did not have the right to access her personal information to send paperwork to her home
or issue discipline. Complainant returned to work on January 21, 2011, but was not
disciplined for her absence.

On January 25, 2011, AS1 and S1 held a pre-disciplinary interview with Complainant
regarding the January 18, 2011 incident. Complainant refused to answer most of the questions
regarding her conduct. On January 27, 2011, AS1 issued Complainant a Notice of Removal,
effective February 26, 2011, for unacceptable conduct.

On February 12, 2011, Complainant submitted and won a bid for a position from Tour 3 to
Tour 2. When the effective date of the Notice of Removal arrived on February 26, 2011,
Complainant gave her badge and timecard to a manager. The Acting Supervisor (AS2)
retrieved the badge and timecard at the instruction of the Tour 2 Acting Manager (AM).
Complainant subsequently filed a grievance regarding the Notice of Removal, and it was
reduced to a 14-Day Suspension on March 3, 2011. Complainant was instructed to return to
work at her new bid on Tour 2 and was never removed from the Agency’s rolls.

On May 7, 2011, Complainant advised AM that she could not continue to perform her duties
and requested Leave without Pay (LWOP) for the remainder of the day. Complainant claimed
that she had not received training on her new job and was not able to perform the job. AM
stated that Complainant complained that she could not perform her job due to health issues so
he told her to clock out and go home. Complainant was not disciplined for leaving work early,
but her requested LWOP was changed to sick leave.

On May 15, 2011, Complainant requested one hour and 15 minutes of annual leave at the end
of her tour. AM denied the request as she was needed to work as scheduled. Complainant
was not disciplined for making this request.

On June 30, 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 sex (female) and in
reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter
alia, her documents were falsified and her privacy was invaded; she was subjected to a pre-
disciplinary interview and subsequently received a Notice of Removal; her badge and timecard
were removed; she was re-hired and disciplined again for the same incident; she was told to go
home on May 7, 2011; and on May 15, 2011, she was denied annual leave.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
0120132959

3
case granted summary judgment in favor of the Agency and issued a decision on June 24,
2013.

In his decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal, and found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ determined that the majority of
Complainant's allegations were without merit and based on her mistaken belief that AS and
AS1 did not have the authority to take the actions she alleged as harassment. In particular, the
record revealed that AS1 had the authority as a fully vested supervisor to obtain Complainant's
mailing address and send her the letter dated January 20, 2011, and to take all the other actions
Complainant alleges were improper. Likewise, AS2 had the authority to retrieve
Complainant's badge and timecard on the effective date of her removal, which was standard
procedure.

Next, the AJ noted that Complainant alleged that when her removal was unilaterally reduced
by the Agency to a 14-day suspension, she was required to serve another suspension. The AJ
found that Complainant was certainly mistaken because once Complainant's removal was
reduced, Complainant was returned to work in her new bid assignment. Further, once
Complainant returned to work, she refused to perform the duties of her new bid assignment.
Complainant alleged that she was not trained to perform her duties and that the Agency should
have found her some other work to do instead of sending her home. The AJ determined that
the evidence established that Complainant's training consisted of on-the-job training, which she
refused to undertake. Complainant refused to undertake the on-the-job training on two
separate days and was sent home by AM on those two occasions.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. In addition, the AJ found that alleged incidents were not sufficiently severe
or pervasive to establish a hostile work environment. As a result, the AJ held that
Complainant had not been subjected to sex discrimination, reprisal, or a hostile work
environment as alleged. The Agency subsequently issued a final order fully implementing the
AJ’s decision. Complainant filed the instant appeal without submitting any arguments or
contentions in support.

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.
0120132959

4
Disparate Treatment/Reprisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that she established a prima facie case of discrimination and reprisal, Complainant failed to
present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions.
More specifically, as to her documentation falsification and privacy invasion claims, the record
indicates that Complainant left work early without permission after a verbal altercation with
AS on January 18, 2011, and was charged with AWOL. ROI, at 54, 316. Complainant called
in to report her absence over the next several days; however, there was no indication that AS
and S1 were notified that Complainant had called in to request sick leave. Id. at 54, 72. As a
result, AS sent Complainant an AWOL Inquiry Letter on January 20, 2011, which
inadvertently included language suggesting that Complainant had not properly reported her
absences. Id

. at 72. S1 explained that AS was the acting supervisor for the week and had the
authority to access employee information in a supervisory capacity. ROI, at 318.
Complainant was not disciplined for her absences.
With respect to the pre-disciplinary interview, Notice of Removal, and the subsequent retrieval
of her badge and timecard, AS affirmed that she held the interview with Complainant on
January 25, 2011, and issued the removal notice based on Complainant’s conduct on January
18, 2011. ROI, at 245. The removal notice cited Complainant’s failure to follow instructions,
her disrespectful and abusive language directed at AS, and her leaving work early without
permission. Id. at 194. Complainant’s removal was to be effective on February 26, 2011, and
AS2 retrieved Complainant’s badge and timecard on that date pursuant to standard procedure
and AM’s instructions. Id. at 432. AM noted that AS2, as acting supervisor, had the same
authority as a regular supervisor to do so. Id

. at 383.
Regarding the discipline she faced following the Notice of Removal, the Agency’s Step 2
Designee affirmed that she made the unilateral decision to reduce the removal to a 14-Day
Suspension. ROI, at 369. The Step 2 Designee noted that Complainant was not re-hired and
punished for the same incident because she was never actually taken off the rolls and the
0120132959

5
removal was reduced to a suspension. Id. Complainant was off work and not paid for a total
of six days. Id

.
Finally, as to the May 7, 2011 incident, AM affirmed that he sent Complainant home after she
told him that she could not perform her duties due to health issues. ROI, at 385. AM stated
that Complainant was to be provided on-the-job training for her assignment, but Complainant
chose not to go to the area he assigned her because she said the work was too fast there. Id. at
386. Finally, with regard to the May 15, 2011 leave denial, AM maintained that her request
was denied because she was needed as scheduled and there was not enough time to adjust the
schedule. Id. at 401. AM noted that the dock clerks’ schedule is made weekly, and there
were a lot of vacations already scheduled at that time of year. Id

.
Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions. At
all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on
the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden.
Finally, to the extent that Complainant contends that she was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that a finding of a hostile
work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv.

, EEOC Appeal No. 01982923 (Sept. 21, 2000). As a result,
the Commission finds that Complainant has not established that she was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION
After a review of the record in its entirety, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency's final order, because the Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence 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:

0120132959

6
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
0120132959

7
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
January 9, 2015