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

Equal Employment Opportunity Commission

Sep 4, 2019

0120180136 (E.E.O.C. Sep. 4, 2019)

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

Enriqueta T.,1
Complainant,

v.

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

Appeal Nos. 0120180136, 2019003008

Agency Nos. 4G-770-0051-14, 4G-770-0228-12

DECISION

Complainant timely filed two separate appeals2 with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 21, 2017, and August 31, 2017, final decisions concerning her equal employment
opportunity (EEO) complaints 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 decisions.

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.

2 The Commission may, in its discretion, consolidate two or more complaints of discrimination
filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission
exercises its discretion and consolidates the above-captioned cases.

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ISSUE PRESENTED

The issue presented is whether the preponderance of the evidence in the record establishes that
Complainant was subjected to discrimination based on race, sex, disability, age, and/or reprisal.

BACKGROUND

At the time of events giving rise to these complaints, Complainant worked as a Rural Carrier at
the Agency’s Conroe, Texas, Post Office. Complainant is a White female, and she was 48 years
old at the time of events giving rise to her first complaint. According to Complainant, she first
engaged in protected EEO activity on June 25, 2012, when she contacted an EEO Counselor to
initiate her first complaint. Complainant stated that she fractured several ribs in an on-the-job
injury on October 15, 2013. According to Complainant, because of this impairment she was
substantially limited in several major life activities such as working, sleeping, walking, and
breathing.

According to Complainant, she has been repeatedly harassed by a 204B Acting Supervisor (S1)
since approximately June 2012. S1 is a White female, and she was 42 years old in June 2012.
Complainant stated that S1 gossips about her with her friends and makes degrading comments
about her. Complainant alleged that on June 6, 2012, S1 watched her in the morning and said that
Complainant was “popping that mail.” According to S1, she made this comment because
Complainant was throwing mail so hard that letters were falling out of the distribution case.
Complainant averred that on June 21, 2012, S1 followed her around, laughing. Complainant
stated that on June 25, 2012, S1 laughed at her, told her she drank a lot, and said that she was
surprised that Complainant had not been arrested or charged with driving while intoxicated
(DWI). According to Complainant, on June 29, 2012, S1 said that she wanted Complainant fired,
and on June 30, 2012, S1 cried like a baby while she was near Complainant’s work area. S1
denied talking about Complainant’s drinking or wanting her fired or crying like a baby near
Complainant’s work area. Complainant averred that on August 9 and 10, 2012, S1 watched her
movements and laughed at her. S1 denied harassing Complainant or making the alleged
comments, but she stated that she was the supervisor responsible for monitoring attendance at the
time.

Complainant alleged that she left work early on June 6, 2012, because she was experiencing
anxiety after being harassed by S1. Complainant averred that on June 13, 2012, the Rural Carrier
Supervisor (S2) asked her for medical documentation for her June 6-11, 2012, absence.
According to Complainant, she gave S2 a June 8, 2012, doctor’s note, but S2 returned it to her
and told her it was not acceptable because it was not worded correctly. According to S2, he told
her that the note was not acceptable because the doctor’s note did not state that Complainant was
unable to perform her duties, and it did not cover all of the days she was absent. Complainant
stated that on June 14, 2012, S2 asked for the medical documentation again. Complainant alleged
that later that morning S1 told her that the documentation did not cover her absence for June 6 or
7, 2012. S1 averred that the documentation was not acceptable because it did not specify the
reason that Complainant was absent or cover all of the dates of her absence.
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According to Complainant, she went back to the doctor on June 14, 2012, to obtain a new note,
and she submitted it to management on June 15, 2012. Complainant stated that on June 20, 2012,
S1 told her that she had not received the updated medical documentation. According to S1, she
received Complainant’s updated medical documentation on June 21, 2012.

Complainant stated that on June 20, 2012, S1 issued her a Letter of Warning dated June 6, 2012,
for unsatisfactory attendance. The Letter stated that Complainant had unscheduled absences on
January 30, 2012, April 14-16, 2012, and May 21, 2012. S1 stated that she conducted a pre-
disciplinary interview with Complainant on June 6, 2012, and that there were no mitigating
circumstances related to Complainant’s unscheduled absences. According to Complainant, she
should not have been issued the Letter of Warning because Rural Carriers can have up to three
unscheduled absences per quarter, and she did not exceed this number of unscheduled absences.
Complainant also stated that one of the unscheduled absences corresponded to an on-the-job
injury and that it was unfair to penalize her for that absence. Complainant grieved the Letter of
Warning, and on June 21, 2012, it was reduced to a “90-day review,” meaning that the document
would be removed from Complainant’s file in 90 days if she did not have additional unscheduled
absences.

Complainant averred that on August 10, August 15, and September 4, 2012, she requested annual
leave for September 14-15, 2012. Complainant stated that she wanted these days off to celebrate
her son’s birthday. According to the record, September 15, 2012, was a Saturday. S1 stated that
the Post Office was short-staffed on weekends at that time, so annual leave for Saturdays was not
generally approved in advance. According to Complainant, the Postmaster (S3) denied her leave
requests because he would have had to cover her shifts with overtime. Complainant alleged that
other employees’ annual leave requests were approved by S3 even though covering their shifts
required paying overtime. According to the record, Complainant’s leave request was approved
on September 11, 2012. Complainant averred that her leave request was ultimately approved at
the last minute, but she felt as if she had to jump through extra hoops.

Complainant alleged that on September 21, 2012, S1 tried to run her over with her mail delivery
vehicle in the parking lot. Complainant stated that S1 was driving very fast and that she had to
jump out of the way to avoid being hit. Complainant averred that she was terrified. S1 denied
trying to hit Complainant with the vehicle. According to Complainant, she immediately reported
the incident to management, but, to her knowledge, no action was taken. S1 stated that
management investigated the matter and concluded that Complainant’s allegation was not true.
Complainant averred that she overheard S1 ask her friends, “What are they going to do, fire
me?”

S3 stated that when he learned that Complainant thought she was being harassed by S1, he
directed a Supervisor, Customer Service (S4) to investigate and moved S1’s work station so she
was farther away from Complainant. According to S3, Complainant and S1 were close friends at
one time but seemed to have a falling out at some point in 2012. S4 averred that he investigated
Complainant’s allegation that S1 was harassing her and that he determined that S1 was not
harassing Complainant but was exercising normal supervisory oversight.
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According to S4, he determined that S1 did not try to run Complainant over, but he referred the
investigation to another supervisor and ultimately to Postal Inspectors when Complainant stated
that his investigation was not impartial.

According to Complainant, on September 27, 2012, she was talking with S3 and S4 about the
September 21, 2012, incident, and S3 and S4 were not taking her concerns seriously.
Complainant alleged that, when she complained, S4 told her that if she did not like the way they
were handling it, she “could go home.” The record contains a September 27, 2012, sick-leave
request submitted by Complainant. Complainant took sick leave for the remainder of the day, but
she averred that she should not have been charged a day of sick leave for reporting harassment
by S1.

Complainant stated that her name was on the overtime-desired list and that October 16, 2012,
was her scheduled day off. According to Complainant, on October 15, 2012, S2 told her
coworkers on the overtime desired list that they would work overtime on October 16, 2012, but
he did not tell Complainant to come in to work overtime. S2 stated that he called all employees
on the overtime desired list on October 16, 2012, to offer overtime but that all routes were
covered by the time Complainant returned his call.

Complainant averred that on December 7, 2012, a Supervisor, Customer Service (S5) issued her
a Letter of Warning for unsatisfactory attendance and failure to maintain a regular work
schedule. The Letter of Warning cited unscheduled absences on September 27-28, October 17,
and November 29, 2012. S3 averred that supervisors are automatically notified when an
employee incurs three unscheduled absences within a 90-day period. According to Complainant,
the cited dates spanned two quarters, and some of the dates corresponded to her speaking to
management and the union about S1 trying to run her over and harassing her. S5 stated that she
interviewed Complainant about the absences on December 6, 2012, and that Complainant
grieved the Letter of Warning, which was reduced to a 90-day review.

According to Complainant, she was injured while working in the afternoon on October 15, 2013,
and she reported the injury at 7:30 a.m. on October 16, 2013, to the Agency’s call-in center and
to the Rural Carrier Supervisor (S6). Complainant averred that on October 16, 2013, S6 told her
that her injury claim would not be accepted because she had not immediately reported the injury.
Complainant stated that she submitted a Notice of Traumatic Injury and Claim for Continuation
of Pay/Compensation, Form CA-1, to S3 on October 17, 2013, and he told her that her injury
claim would not be accepted because she had hurt herself bowling the night before. According to
Complainant, she had not been bowling. The record contains a Form CA-1 signed by
Complainant on October 17, 2013, which states that she felt a pull in her left shoulder while
moving a tray of mail and that she woke up in the middle night with extreme pain in her left
shoulder and back and breathing trouble. Complainant alleged that she asked S3 for a copy of the
accident report, PS Form 1769, when she submitted the Form CA-1 but that she did not receive
one. Complainant stated that she spoke with a Houston District Injury Claims Office employee
on October 18, 2013 and asked for copies of the forms needed to authorize medical treatment to
be sent to her doctor.
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Complainant averred that her doctor never received these forms from the Agency and that she
delayed seeing her preferred doctor until November 7, 2013, when she decided that she could not
continue to delay treatment until the Agency sent the forms.

Complainant averred that on October 22, 2013, a Rural Carrier Supervisor (S7) left her a
message that she needed to come in to sign her Form CA-1 so she could see a doctor. According
to Complainant, on October 23, 2013, she noticed that S7 had changed her wording about her
injury and her symptoms. The record contains a Form CA-1 signed by Complainant on October
23, 2013, that described her injury as a left shoulder strain. Complainant stated that she asked S7
for a copy of PS Form 1769 at this time. S7 stated that in October 2013 Complainant had not
given the Agency enough information to complete an accident report, noting that, as of
November 7, 2013, the only medical documentation Complainant provided was a note stating
that she had been seen by a doctor on a certain date. Complainant averred that she should have
been offered work on October 23, 2013, but that she was not.

According to Complainant, she received a Letter of Warning for unsatisfactory safety
performance signed by S6 on November 2, 2013. According to the Letter of Warning,
Complainant’s October 15, 2013, injury was preventable. Complainant alleged that she called S3
and asked for the PS Form 1769 over the phone on November 2, 2013. Complainant averred that
the accident report should have been ready and available for her if she was already being
disciplined for her injury. According to the record, Complainant grieved the Letter of Warning,
and it was reduced to an official discussion.

Complainant stated that on November 15, 2013, she asked S7 for the PS Form 1769 and S7 told
her that she was not entitled to a copy and that she was lucky that she had gotten to see the Form
CA-1. S7 denied making this statement or withholding documents from Complainant. According
to S7, she told Complainant that she needed S3’s permission and that she gave Complainant a
copy when S3 said that it was alright.

The record contains a December 3, 2013, Form CA-17 Duty Status Report, in which
Complainant’s doctor indicated that she was not cleared for employment because she was taking
narcotics and that the only functional activities Complainant could perform were four hours
sitting and two hours walking. Complainant averred that on December 11, 2013, the Acting
Postmaster (S8) told her that her medical documentation was not acceptable. According to S8,
Complainant originally reported a shoulder injury, then she changed her story and stated that she
had broken her ribs. The record contains a February 20, 2014, note from Complainant’s doctor
that stated that Complainant could do light work with restrictions of no lifting more than 10
pounds and no stressful activity for the shoulder. S6 stated that Complainant provided a doctor’s
note stating that she had restrictions and was unable to do her normal job duties but that she did
not provide the needed Form CA-17 completed by her doctor until March 2014. Complainant
alleged that since that date she sent all of her medical documentation to management and
requested work. The record contains a March 18, 2014, Form CA-17 Duty Status Report, which
states that Complainant could not perform her job duties but that she could perform sedentary
desk work with a 10-pound lifting restriction.
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According to Complainant, on March 21, 2014, S6 told her that there was no light duty work
available within her restrictions. S6 stated that there was no work that would accommodate
Complainant’s lifting restriction. S8 averred that Rural Carriers are not entitled to light duty
under the terms of their contract.

Complainant averred that management may have delayed processing her accident report and
denied her light duty because she had previously rejected S3’s sexual advances. Complainant
alleged that beginning in 2006 or 2007 when she was a part-time employee, S3 began sexually
harassing her. According to Complainant, S3 would see her at a restaurant that she frequented at
that time. Complainant stated that S3 harassed her on a daily basis, doing things such as putting
his hand on her inner thigh, brushing her hair off her shoulder, calling her a “MILF,” and
following her home from the restaurant. According to Complainant, she told S3 that he was
married and that she was not interested in his attention. Complainant alleged that S3 wanted to
come into her home but that she refused. Complainant stated that when S3 touched her she
would leave the restaurant or leave her work area to get away from him. According to
Complainant, S3 offered to help her become a supervisor, and he told her that he had helped
another female employee pass the supervisor’s test. S3 denied sexually harassing Complainant,
touching her, invading her personal space, following her home, or offering to help her get a
supervisory position. Complainant stated that she stopped going to the restaurant in question to
avoid S3. Complainant averred that in December 2007 S3 stopped harassing her daily but that
the harassment has been ongoing. According to Complainant, S3’s promiscuity was an open
secret among Conroe employees.

Procedural History

On October 10, 2012, Complainant filed an EEO complaint, which she subsequently amended,
alleging that the Agency discriminated against her on the bases of race (White), sex (female), age
(48), and reprisal for prior protected EEO activity when:

1. Beginning on or about June 6, 2012, S1 subjected her to degrading comments, such as
“popping that mail,” “you drink a lot,” “surprised you have not received a DWI,” stated
that she wants Complainant fired, laughed at Complainant, cried like a baby while
standing around Complainant’s work area, followed Complainant on the workroom floor,
and watched Complainant’s movement throughout the morning;

2. On June 6, 2012, she was issued a Letter of Warning for attendance;

3. On June 13 and 14, 2012, management refused to accept and then lost her medical
documentation;

4. On August 10, August 15, and September 4, 2012, her request for annual leave for
September 14-15, 2012, was denied;

5. On September 21, 2012, S1 tried to run her over with her mail delivery vehicle;
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6. On September 27, 2012, she was sent home;

7. On October 16, 2012, her request for overtime was denied; and

8. On December 7, 2012, she was issued a Letter of Warning.

On January 10, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female), disability (fractured ribs), age (49), and
reprisal for prior protected EEO activity when:

9. Beginning on an unspecified date, she was subjected to unwanted sexual advances from
S3;

10. She was not provided a copy of the Accident Report as requested;

11. She was issued a Letter of Warning dated October 15, 2013; and

12. Since October 23, 2013, she has not been provided work.3

At the conclusion of the investigation into the accepted claims, 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 (AJ).
Complainant timely requested a hearing for both of her complaints, but she subsequently
withdrew her requests. Consequently, the Agency issued final decisions pursuant to 29 C.F.R.
§ 1614.110(b).4 The decisions concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. The instant appeals followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she testified about extensive harassment by S1 and sexual
harassment by S3 and that the EEO Investigators did not contact potential witnesses who could

3 The Agency dismissed four additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim as a collateral attack on matters within the purview of the Department of Labor’s
Office of Workers Compensation Programs (OWCP). On appeal, Complainant does not
challenge the Agency’s procedural dismissal of these claims. The Commission will therefore
exercise its discretion and not address the dismissed claims.

4 On appeal, Complainant contends that neither she nor her representative received a final
decision on Agency No. 4G-770-0228-12. The record reflects that the Agency issued its final
decision for that complaint on August 21, 2017, and also mailed copies to Complainant and her
representative at their addresses of record on that date.

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have corroborated her account.5 According to Complainant, she established that the Agency
failed to participate in the interactive process to see if she could be reasonably accommodated
after her on-the-job injury. Complainant concedes that the record does not establish that she was
subjected to discrimination based on age, but she claims she established that she was denied a
reasonable accommodation, that she was subjected to sexual harassment, that she was subjected
to a hostile work environment, and that the Agency’s legitimate, nondiscriminatory reasons for
its actions were pretextual. Complainant requests that the Commission find that she was
subjected to discrimination and award her damages.

In response to Complainant’s appeals, the Agency contends that its final decisions finding no
discrimination should be affirmed because Complainant did not establish by the preponderance
of the evidence in the record that she was subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

As these are appeals from decisions issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decisions are 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”).

Denial of a Reasonable Accommodation

Complainant alleged that she was denied a reasonable accommodation when the Agency did not
provide her with work within her medical restrictions beginning on October 23, 2013. In order to
establish that Complainant was denied a reasonable accommodation, Complainant must show
that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability;
and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915.002 (Oct. 17, 2002).

An agency is required to make reasonable accommodation to the known physical and mental
limitations of a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), (p). “The term
’qualified,’ with respect to an individual with a disability, means that the individual satisfies the
requisite skill, experience, education and other job-related requirements of the employment

5 The record does not reflect that the EEO Investigators neglected to interview relevant
witnesses. Further, we have thoroughly reviewed both of the reports of investigation and find the
record sufficiently developed.
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position such individual holds or desires and, with or without reasonable accommodation, can
perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).

It is undisputed that Complainant is an individual with a disability. According to the record, the
Agency possessed limited medical documentation that did not detail Complainant’s medical
restrictions until December 3, 2013. Further, the December 3, 2013, documentation stated that
Complainant could not work because she was taking narcotics. Therefore, Complainant, who
was on leave, could not perform the essential functions of her position at this time. In February
and March 2014, Complainant provided additional documentation releasing her for sedentary
work with a 10-pound lifting restriction. Although Complainant contends that there was work
that she could have performed within her restrictions, we find that the preponderance of the
evidence does not support her contention. Complainant has not shown that there existed an
accommodation that would have enabled her to perform the essential functions of her Rural
Carrier position. Further, the record reflects that the Agency appropriately conducted a search for
work within her medical restrictions after determining that she could not perform her Rural
Carrier duties with or without a reasonable accommodation and that there did not exist a suitable
vacancy. Accordingly, we find that Complainant has not established that the Agency unlawfully
denied her a reasonable accommodation. We will separately analyze this allegation as a
disparate-treatment claim below.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant alleged that she was subjected to discrimination when she received Letters of
Warning for attendance on June 6 and December 7, 2012. The Agency’s legitimate,
nondiscriminatory reason for issuing both of the Letters of Warning is that Complainant had
more than two unscheduled absences within a 90-day period. Although Complainant contends
that the policy was supposed to look at absences within a quarter rather than any 90-day period,
the record does not establish that to be the case. Moreover, the preponderance of the record does
not otherwise establish that the Agency’s proffered legitimate, nondiscriminatory reason was
pretextual.
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Complainant alleged that she was discriminated against when she was told that her June 2012
medical documentation was not adequate. The Agency’s legitimate, nondiscriminatory
explanation was that the initial documentation did not cover all of the days of Complainant’s
absence or state that she was unable to work on the dates in question. Upon review, the
preponderance of the evidence in the record does not establish that the Agency’s legitimate,
nondiscriminatory reason was a pretext for discriminatory animus.

Complainant alleged discrimination with respect to S3 denying her annual leave request for
September 2012. Although Complainant’s leave request was ultimately approved, the Agency’s
legitimate, nondiscriminatory reasons for denying her previous leave requests was that the Post
Office was short-staffed on the weekends and that S3 wanted to minimize the use of overtime.
As evidence of pretext, Complainant contends that other employees did not have to jump through
as many hoops to get their leave requests approved. However, there is no evidence in the record
of similarly situated employees who had annual leave requests approved weeks in advance by
S3, and Complainant has not otherwise established that the Agency’s legitimate,
nondiscriminatory reasons are pretexts designed to mask discrimination based on race, sex,
and/or age.

Complainant alleged that she was discriminated against when she was sent home on September
27, 2012. The Agency’s legitimate, nondiscriminatory explanation for its actions is that
Complainant requested sick leave for September 27 and 28, 2012, and that her request was
approved. Complainant characterized being charged with sick leave as unfair, but the
preponderance of the evidence in the record does not establish that the Agency’s legitimate,
nondiscriminatory reasons are pretextual.

Complainant alleged that she was subjected to discrimination when she did not work overtime on
October 16, 2012. The Agency’s legitimate, nondiscriminatory reason for not assigning
Complainant overtime on the date in question was that there were no assignments remaining
when Complainant returned her supervisor’s call. Complainant alleged that other employees
were told about the overtime opportunity on October 15, 2012, but the preponderance of the
evidence in the record does not establish this to be the case. We also find that the preponderance
of the evidence in the record does not establish pretext.

Complainant alleged that she was subjected to discrimination when she did not receive a copy of
the accident report. The Agency’s legitimate, nondiscriminatory explanation for its actions is that
Complainant did receive a copy of the accident report after S3 gave permission for the document
to be released. Although Complainant contends that she was not provided a copy of the accident
report at that time, we find that Complainant has not established that the Agency’s legitimate,
nondiscriminatory reason was pretextual.

Complainant alleged discrimination when she received a Letter of Warning related to her
October 15, 2013, on-the-job injury.
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The Agency’s legitimate, nondiscriminatory reason for issuing the Letter of Warning was that its
internal investigation of the events on that day determined that her injury could have been
avoided if she had adhered to the Agency’s safety procedures. According to the record,
Complainant was asked to attend an investigative interview regarding the accident, but she did
not, so the assessment was based on her verbal and written descriptions of what happened that
day. Although Complainant contends that it was unfair to punish her for getting hurt, we find that
the preponderance of the evidence in the record does not establish pretext for discrimination.

Finally, Complainant alleged that she was discriminated against when she was not provided work
beginning on October 23, 2013. The Agency’s legitimate, nondiscriminatory reasons for not
providing her with work were that her medical documentation initially indicated that she could
not work at all and that there was no work available within her medical restrictions when her
doctor said she could perform sedentary work in February and March 2014. We find that the
preponderance of the evidence in the record does not establish that these legitimate,
nondiscriminatory reasons were pretextual.

Sexual Harassment

Complainant alleged that she was subjected to sexual harassment by S3 beginning in 2006 or
2007. In order to establish a prima facie case of sexual harassment, a complainant must establish
that: (1) she is a member of a statutorily protected group; (2) she was subjected to unwelcome
sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual
nature; (3) the harassment of which she complained is based on sex; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of unreasonably interfering
with her work environment and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City
of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982). The harasser’s conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim’s situation. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994)
(Enforcement Guidance on Harris v. Forklift Systems, Inc.).

Complainant’s alleges that S3 sexually harassed her on a daily basis for approximately one year
and that the unwanted harassment included sexual advances, touching her, invading her personal
space, calling her a MILF, going to a restaurant frequented by Complainant, following her home
and asking to come inside, and offering to help her obtain a supervisory position if she submitted
to his advances. These allegations are quite troubling, particularly in light of the fact that
Complainant was a part-time employee at the time. However, we find that Complainant has not
established by the preponderance of the evidence in the record that the sexual harassment
occurred in the manner alleged. S3 denied sexually harassing Complainant. These allegations of
concern conflicts in witness testimony, and Complainant did not produce any additional evidence
to support her assertions. Complainant withdrew her request for a hearing before an EEOC
Administrative Judge, and as a result we do not have the benefit of an Administrative Judge's
credibility determinations of the witnesses in this case. Complainant bears the burden to prove,
by a preponderance of the evidence, that the alleged discriminatory acts occurred.
0120180136, 2019003008

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When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't
of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to
establish that witnesses made false statements where he withdrew his request for a hearing and
credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal
No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made
offensive comments in a “he said, she said” situation where complainant requested a final
decision and an Administrative Judge did not make credibility determinations). Accordingly,
Complainant has not established by the preponderance of the evidence in the record that she was
subjected to sexual harassment.

Hostile Work Environment (Non-Sexual Harassment)

Complainant also alleged that she was subjected to non-sexual harassment that constituted a
hostile work environment. To establish a claim of harassment a complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer. See Henson, 682 F.2d at 901-05.
Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment." Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should again be evaluated from
the objective viewpoint of a reasonable person in the victim's circumstances. See Enforcement
Guidance on Harris v. Forklift Systems, Inc.

Here, there is no evident connection between the alleged harassment and Complainant’s race,
sex, disability, age, and/or prior protected EEO activity. In addition to the allegations already
discussed above, Complainant alleged that she was subjected to verbal and physical harassment
by S1. However, S1 was a White female who was also over the age of 40, and the alleged
harassment by S1 did not involve Complainant’s membership in these protected classes. The
record reflects that Complainant reported that she was being harassed to management after S1
allegedly tried to run Complainant over on September 12, 2012, but the record reflects that S3
appropriately separated Complainant and S1 and asked S4 to investigate. Further, when
Complainant accused S4 of not impartially investigating the matter, the record reflects that he
referred the matter to the Agency’s Postal Inspectors. Accordingly, we find that Complainant has
not established that she was subjected to a hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decisions because the
preponderance of the evidence in the record does not establish that discrimination occurred.

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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

September 4, 2019
Date