Danita S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 8, 2019

0120170727 (E.E.O.C. Mar. 8, 2019)

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

Danita S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 0120170727

Agency No. 4G752010616

DECISION

On December 11, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 1, 2016, 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant established that she was subjected to discriminatory harassment based on
race, sex, age, disability, and retaliation (prior EEO activity) when:

1) On or around March 25, 2016, her supervisor tried to force her to work beyond her medical
restrictions when he ended her medical break;
2) On March 29, 31, 2016, her supervisor sexually harassed her when he got in her space;
3) On April 13, 2016, management would not accommodate her request to reposition her
computer screen;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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4) On May 4, 2016 and other dates to be specified, she was sexually harassed; and
5) On dates to be specified, she was not given “leads” like her co-workers were, and then
threatened with discipline.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Agency’s Postal and Distribution Center (P&DC) facility in Dallas, Texas. On April 22, 2016,
Complainant filed an EEO complaint alleging that the Acting Customer Relations Coordinator,
North Texas P&DC, (S1), the Acting Supervisor, Customer Services, North Texas P&DC (S2),
and the Business Development Specialist, North Texas P&DC, (S3) intentionally discriminated
against her as set forth above.

Claim 1:

On or around March 25, 2016, Complainant alleged that S1 tried to force her to work beyond her
medical restrictions when he ended her medical break. Complainant alleged that S1 caused her
increased pain and stress, which triggered an anxiety attack, when he entered the room in a loud,
and embarrassing manner. According to Complainant, he ended her medical break which she had
just begun. She also indicated that she informed S1 that she felt disrespected and embarrassed by
the way he approached her.

Complainant stated that S1 approached her at her desk, stood behind her and told her he was not
leaving until she made a phone call; and that he walked away when she made the call. She also
stated that she went to the locker room to calm herself down; however, while she was later sitting
at her desk, S1 again approached her and demanded that she come into his office but she informed
him she would not comply until she spoke to her Union Representative, a request she had made
on a previous occasion.

S1 denied Complainant’s allegations. He explained that he had asked her to return to her duties of
making phone calls after seeing her talking to a coworker on several occasions; and apologized to
her when she indicated that she did not like being called out in front of others. He added that when
he asked Complainant to come into his office, she stated she would not do so until she could talk
to her Union representative.

Claim 2:

On March 29, 31, 2016, Complainant stated that S1 sexually harassed her when he got in her space.
Complainant maintained that S1 came uncomfortably close to her while she was sitting at her
computer.

2 The record indicates that Complainant’s complaint also contained a 6th allegation that was
dismissed by the Agency. Complainant did not contest the Agency’s dismissal on appeal,
therefore, this matter will not be addressed in this decision.
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She stated that he knelt close to her seat and desk, leaned in front of her and talked in a very low
whisper as if he did not want other employees to hear. Complainant added that S1 was so close to
her that they were almost touching, and that she let S1 know she felt uncomfortable. Complainant
stated S1’s response was that he needed a number off her computer, and that she could have easily
given him the number.

S1 denied Complainant’s allegations explaining that he was merely retrieving needed serial
numbers from her computer, that he moved to another side of her workspace when she complained
that he was too close; and that Complainant never informed him that she felt sexually harassed.
According to S1, Complainant filed a grievance regarding the incident which resulted in an
investigation that found her allegations were unsubstantiated.

Claim 3:

On April 13, 2016, Complainant maintained that management would not accommodate her request
to reposition her computer screen. Complainant asserted that she requested a repositioning of her
computer screen as a reasonable accommodation for her work restrictions from S3 in addition to
the headset, leg rest and keyboard she had been offered previously; however, the request was
denied. Complainant stated that she needed the accommodation to enable her to see S1 if he
approached her and thus to prevent a panic attack. She explained that he had approached her on
previous occasions, startling her.

S3 asserted that she observed Complainant’s computer incorrectly positioned; therefore, she
instructed her to return her monitor to its original position, and that Complainant never requested
reasonable accommodation as alleged.

Claim 4:

On May 4, 2016, and other dates, she was sexually harassed. Complainant maintained that S2
approached her while holding a pen and paper, but then turned and walked away to the end of her
row. She indicated that he then turned around a second time and walked by her without talking,
looked at her and then walked away again. Complainant noted that when he did this a third time,
she asked S2 what he needed, and he replied that he needed to observe her making phone calls.

Complainant alleged that when she then informed S2 that she needed to use the restroom, he pulled
up a chair too close to her, and she let him know; that he followed her too closely when she got
up; and that he almost bumped into her when she turned around.

S2 denied Complainant allegations stating that he had to sit close to her to see and hear her when
he monitored her performance as required; that he moved his chair back when she asked him to;
and that she did not raise an issue of sexual harassment at the time.

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Claim 5:

Complainant maintains that on several occasions, she was not given “leads” like her co-workers
were, and then threatened with discipline. Complainant alleged that some employees, including
her, were not provided with a “lead” list, which are call lists that do not require calls and which
allow an employee to simply close the lead. She explained that typically they are given lists, which
require making phone calls; and if they fail to meet management’s expectations, they are
threatened with discipline whereas those employees who are given “lead” lists are treated more
favorably.

Management explained that all employees are assigned “leads;” and that Complainant was not
treated less favorably than others. S2 explained that complainant was given a discussion about her
poor work performance; and that she was made aware that her lack of performance could be subject
to discipline.

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. 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). The decision (FAD) concluded that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant did not submit a statement or brief on appeal.

The Agency, among other things, requests that we affirm its FAD.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, sex, age, disability, and retaliation; we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions with respect to claims 1, 3 and 5. According to
management, her supervisors were performing their job when they asked her to return to her duties
after her medical break; retrieved serial numbers from a computer she was working on; asked that
she return her monitor to its original position; and discussed Complainant’s work performance
with her. Like the Agency, we find no persuasive evidence that Complainant ever requested a
reasonable accommodation to have her computer screen repositioned as alleged. We find no
persuasive evidence of pretext.

Regarding Complainant’s hostile work environment claim, we first find that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a
hostile work environment must fail with respect to claims 1, 3, and 5. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a
hostile work environment is precluded by our determination that Complainant failed to establish
that these three claims were motivated by discriminatory animus. See Oakley v. United States
Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

With respect to claims 2 and 4, Complainant’s claims of sexual harassment, we find that she
provided no persuasive evidence that either her sex or any other protected basis was the true
motivation behind her supervisor’s actions. Consequently, her sexual harassment claim fails. As
Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s
credibility determinations after a hearing; therefore, we can only evaluate the facts based on the
weight of the evidence presented to us.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s FAD.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 8, 2019
Date