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

Equal Employment Opportunity Commission

Aug 16, 2019

0120181317 (E.E.O.C. Aug. 16, 2019)

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

Jenna P.,1
Complainant,

v.

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

Appeal No. 0120181317

Hearing No. 450-2014-00092X

Agency No. 4G-780-0049-13

DECISION

On March 1, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 12, 2018 final action 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.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier at the Agency’s Temple Post
Office in Temple, Texas.

On March 14, 2013, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to harassment/a hostile work environment based on race (African-American),
sex (female), and in reprisal for prior EEO activity when:

1. on May 28, 2012 and December 17, 2012, she requested special route counts and they
were denied;

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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2. on June 6, 2016, an unspecified date in August 2012, and on October 22, 2012, she was
subjected to a street inspection and never provided feedback;

3. on September 20, 2012, she was brought in for a Pre-Disciplinary Interview (PDI), and
she was issued a Letter of Warning (LOW), for Failure to Follow Instructions-
Extending street time;

4. on September 20, 2012, she requested sick leave, provided documentation, and was
charged Leave Without Pay (LWOP);

5. on September 20, 2012, December 18 and 29, 2012, and February 13, 2013, her
supervisor and/or Postmaster made threatening and/or inappropriate comments to her,
such as “you can stay and deliver your route, leave and provide medical documentation,
or resign,” “someone from management would meet with you for a PDI every day if
you did not meet your standard time,” “your discipline will be aggressive in nature until
you’re out the door,” and management stated “I am building a case to get you removed
from the Post Office,” and “people are watching her;”

6. on October 11, 2012, she was subjected to a street observation by her supervisor and a
second observation by the Postmaster, she was subjected to a PDI and on October 15,
2012, she was issued a LOW for Unacceptable Performance/Failure to Follow
Instructions per company policy/Failure to use Satchel as instructed;

7. on various dates beginning on or about October 22, 2012, and including February 8 and
16, 2013, she has been subjected to street observations;

8. on December 18, 2012, she was subjected to a PDI, and subsequently, on or about
December 28, 2012, she was subjected to a PDI and issued an undated 7-Day
Suspension for Unsatisfactory Performance, Failure to Follow Instructions, Extending
Street Time;

9. on February 7 and 13, 2013, she was subjected to a PDI;

10. on February 16, 20113, the Postmaster attempted to conduct a special route inspection
(271g) on her route;

11. on March 27, 2013, she was subjected to a PDI, and subsequently on March 28, 2013,
she was issued a LOW for Failure to Follow Instructions/Unauthorized Overtime;

12. on March 28, 2013, the Postmaster counted her route in the office;

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13. on April 6-12, 2013, shew as subjected to an improper Special Route Inspection,
overtime was taken off her route, and she was subjected to daily confrontations due to
the inspection;

14. on or about February 11, 2013, management delayed her Department of Labor
paperwork;

15. on April 24, 2013, management confronted her off-the-clock regarding Postal work;

16. on April 8, 2013, she was sent Auxiliary Assistance, but a completed Form 1838B was
not given to her;2

17. on April 24 and 30, 2013 and May 3, 2013, the Postmaster started a confrontation with
her regarding time needed for her route;

18. on May 1, 6, 8 and 9, 2013, other employees were permitted to be in the office after
ending their tour, but she was told on April 25, 2013, that she could not;

19. on May 2, 2013, her supervisor came to her route and started a confrontation based on
a statement by another employee;

20. on May 2, 2013, she was given a PDI regarding extension of her street time;

21. on May 9, 2013, another street inspection was performed on her route;

22. on May 9, 2013, the Postmaster performed a Street Observation on her route without
her knowledge at the time;

23. on May 9, 2013, she was given a PDI;

24. on May 14, 2013:
a. she was given a PDI;
b. she was issued a Letter of Warning for Failure to Follow Instructions-MAP
Points;
c. she was issued a Notice of Seven Day (NTO) Suspension for “Repeated Failure
to Follow Instructions/Repeated Unauthorized Overtime;” and
d. while on the street, her request for more time was denied and she was told
“deliver it;”

25. on May 16, 2013:
a. she was issued a LOW for Failure to scan MSP Points,” that duplicated a charge
she was given on May 14, 2013;

2 Form 1838 is related to count of mail on all letter delivery routes.
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b. throughout the morning the Postmaster was confrontational when asking
questions at her case and changing her Form 3996;3 and
c. while discussing her route times, the Postmaster stated “he felt that I am pacing
myself on the street to extend me time(sic);”

26. on May 18, 2013, the Postmaster tried to start a confrontation with her when:
a. negotiating her leave/return time;
b. changing the amount of time on the PS Form 3996;
c. telling her that her starting time would be 9:30 a.m. beginning the next Monday
and her mail would be 9:30 a.m. the next Monday and her mail will be ready
for her to carry;”
d. making numerous comments; and
e. requiring that her submit medical documentation stating “totally incapacitated”
if she were going to go home;

27. her Route Information Card is missing;

28. on a daily basis, including May 28, 2013, the Postmaster came to negotiate her leave
time, she requested assistance, and she was denied some of the time she requested, and
she was subjected to a PDI;

29. on May 29, 2013, she was subjected to a PDI for using unauthorized overtime;

30. on an unspecified date, she learned that her request for eighty (80) hours of Family
Medical Leave Act (FMLA) protected sick leave for May 29, 2013 through June 15,
2013, had been changed to forty (40) hours of Annual Leave and forty (40) hours of
FMLA;

31. on or about June 4, 2013, she learned that she was charged 32 hours of LWOP and 6.07
hours of Annual Leave for May 19, 2013 through May 25, 2013, when she was out on
Sick Leave, and management delayed making a pay adjustment;

32. on June 17, 2013, management came to the street and took her overtime away from her;

33. on June 24, 2013 and July 16, 2013, she was given PDIs;

34. her absence from June 29, 2013 to July 5, 2013, was not recorded correctly;

35. on August 2, 2013, she was told to clock out and go home early;

36. on July 30, 2013, she was given a PDI, and subsequently, on August 13, 2013, she was
given a LOW; and

3 PS Form 3996 is a form for overtime/assistance request.
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37. on August 10 and 14, 2013, she was given PDIs.

After an investigation of the complaint, Complainant was provided a copy of the investigative file,
and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed
a Motion for a Decision Without a Hearing. On February 1, 2018, the AJ issued a decision by
summary judgment in favor of the Agency.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

The AJ noted that in October 1997, Complainant began working for the Agency. At that time,
Complainant was a City Carrier assigned to the Agency’s Temple Post Office. During the relevant
period, Complainant’s supervisors were the Postmaster, a named male Supervisor Customer
Service, Officer-in-Charge, and a named female Supervisor Customer Service.

Regarding claims 1, 2, 7, 10, 12, 13, 21 and 22, Complainant claimed that she was subjected to
street inspections/street observations and special route counts. The Postmaster (white male,
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unknown prior protected activity) explained that management followed the Agency’s policy
concerning special route counts. Specifically, the Postmaster stated that during the relevant period,
Complainant had deficiencies which “she refused to correct.” The Postmaster stated “I count a
different route every day of the week besides Sunday” and that the carrier must be notified at least
the day before the count. The Postmaster also noted that street supervision “is conducted every
day on carriers at different times and by difference supervisors.”

Moreover, we take special note that in claims 10 and 13, Complainant claims that she was
subjected to harassment when on February 16, 2013, the Postmaster attempted to conduct a special
route inspection (271g) on her route and on April 6-12, 2013, she was subjected to an improper
Special Route Inspection, overtime was taken off her route, and she was subjected to daily
confrontations due to the inspection. The Postmaster stated there was no special route counts being
conducted.

The Postmaster asserted that Complainant was not performing her duties as described in the
Employee and Labor Relations Manual, M-41 Handbook, and “the contract causing her to not
make the evaluated time for her route.”

Regarding claim 13, the Postmaster stated while there was no special route counts being conducted
“the route was counted at the complainants request and [supervisor] from the Belton Post Office
was the supervisor conducting the count.”

The Officer-in-Charge (black female, unknown prior protected activity) stated that during the
relevant period, Complainant failed to follow instructions and extended her street time. She noted
that Complainant “was not willing to make corrections and stick with it.” Moreover, the Officer-
in-Charge stated “I’ve not know supervisors or Postmaster to threaten anyone.”

Furthermore, the Officer-in-Charge stated “everything it was something different with
[Complainant]. She basically would go home if she didn’t like what you said…i.e. you did not
follow orders yesterday and extended your street time.” The Officer-in-Charge explained that her
supervisor “just started having certain people work with her…she was using up all the supervisor’s
time and we had all the other clerks to work with.”

Regarding claims 5, 15-19, 26-28, 32, and 35 relating to management’s supervision of
Complainant. The Supervisor Customer Service (“Supervisor 1”) (black female, unknown prior
protected activity) stated on one occasion after having an investigative interview, Complainant
became upset and claimed she would not work under the present conditions and wanted to go home
sick. Supervisor 1 informed Complainant that she had three choices: to work/deliver the route,
leave and provide documentation, or resign if she did not want to work.

The Postmaster explained at that time, Complainant became upset after an investigative interview.
The Postmaster informed Complainant that her discipline would be progressive in nature and “that
if she did not correct her deficiencies the discipline could lead to a removal.” The Postmaster
stated that on one occasion, Complainant requested overtime on her assignment and “since no
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employee is guaranteed overtime, it was taken off of her to keep her within the 8 hours she is
guaranteed.” Specifically, the Postmaster stated that every employee “must have at least one 8-
hour day every pay period and no one is guaranteed overtime.”

With respect to claims 3, 6, 8, 9, 11, 20, 23-25, 29, 33, 36, and 37, Complainant alleged that she
was subjected to various PDIs and/or discipline actions.

The Postmaster stated that in May 2013, he asked Complainant “the same questions I ask every
other carrier: when they were leaving, when they were returning, and why they needed overtime
if requested. When she couldn’t justify the overtime I disapproved it and wrote down the approved
time on the 3996 just like it is done for every employee.” The Postmaster stated that he recalled
following a PDI in May 2013, Complainant was charged AWOL for “not providing documentation
as instructed for leaving on 5/18/2013.”

Supervisor 1 acknowledged conducting PDIs with Complainant for failure to follow instructions.
For instance, Supervisor 1 stated that in September 2012, she issued Complainant a Letter for
Warning for Failure to Follow Instructions – Extending Time because she worked more than was
approved. Supervisor 1 also stated that in October 2012, Complainant was issued a LOW for
Unacceptable Performance, Failure to Follow Instructions per Company Policy, Failure to Use
Satchel as Instructed, she was issued discipline because she observed Complainant failing to her
instructions.

Furthermore, Supervisor 1 explained that all employees “who demonstrate unacceptable
performance, corrective action is administered across the board.” Supervisor 1 also stated that
Complainant “demonstrates poor work ethics and [an unwillingness] to perform her duties &
follow instructions.”

The Supervisor Customer Service (Supervisor 2) (white male, unknown prior protected activity)
recalled that on May 29, 2013, Complainant was given a PDI because she “was believed to be
extending her street time due to ongoing performance deficiencies that were observed on a
continuing basis every time a street observation was perform on her despite instructions to cease
the inefficient activity.”

Regarding claims 4, 14, 30, 31 and 34 relating to Complainant’s leave, Supervisor 2 stated “if this
was an unscheduled absence for SL [Complainant] was probably instructed to provide acceptable
documentation and while she may have provided documentation it may not have been acceptable.
Generally, ‘patient was seen in my office today’ is not acceptable.”

The AJ noted that Complainant alleged that her Department of Labor’s Office of Workers
Compensation Program (OWCP) paperwork was deliberately delayed by management.
Supervisor 2 noted that Complainant “did have me sign her paperwork, I thought what I was given
was a copy and that she was sending her own paperwork in to injury comp.
Once Supervisor 2 became aware that Complainant had not submitted the information to OWCP,
he sent the documentation to OWCP.
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Complainant’s FMLA request was approved on July 10, 2013. She was charged sick leave on
May 30, 2013, annual leave from June 3, 2013 through June 7, 2013, and FMLA sick leave from
June 8, 2016 through June 15, 2013. At that time, Complainant was not sure whether there was a
difference between what she requested and what was in the system. The record, however, reflects
that after Complainant provided acceptable documentation, her request was approved and she was
paid in the following pay period.

The record further reflects that while Complainant argued that her absences from June 29, 2013 to
July 5, 2013, were recorded incorrectly, she requested FMLA sick leave and her time was recorded
as FMLA sick leave.

Hostile Work Environment

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, 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.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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 her protected basis – in this case, her race, sex and prior EEO
activity. Only if Complainant establishes both of those elements, hostility and motive, will the
question of Agency liability present itself. Here, Complainant simply has provided no evidence
to support her claim that her treatment was the result of her race, sex and prior EEO activity.

CONCLUSION

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding
no discrimination.

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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

August 16, 2019
Date