Jonelle R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 20, 2019

0120181383 (E.E.O.C. Jun. 20, 2019)

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

Jonelle R.,1
Complainant,

v.

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

Appeal No. 0120181383

Agency No. 4K-270-0015-17

DECISION

On March 13, 2018, 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
February 13, 2018, 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. 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales,
Services/Distribution Associate, Level 6, at the Agency’s Durham-Shannon Plaza Station in
Durham, North Carolina.

On January 6, 2017, 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 age
(57) when:

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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1. on November 19, 2016, Complainant was not permitted to work overtime at the
Apex, North Carolina Post Office;
2. on or about November 20, 2016, through December 2, 2016, Complainant was
denied the opportunity to work overtime;
3. during December 2016, Complainant was provided with less overtime than her
coworkers;
4. on December 3, 2016, while working on Complainant’s non-scheduled day,
Complainant was instructed to only work eight hours; and
5. on December 11, 2016, Complainant was sent home after only working 6.5 hours
of overtime.

In addition, Complainant alleged that she was subjected to reprisal for prior protected EEO activity
when:

6. on December 17, 2016, Complainant was subjected to a pre-disciplinary interview
(PDI);
7. since the quarter beginning January 1, 2017, Complainant has not been scheduled
to work non-scheduled day overtime;
8. on January 11, 2017, Complainant was instructed that effective immediately, she
was to report for duty at 5:00 a.m.; and
9. between January 11, 2015 through January 11, 2017, during the Amazon contract,
Complainant was not paid for overtime hours when she reported for duty at 3:00
a.m.

On May 18, 2017, Complainant amended her complaint to further allege the Agency discriminated
against her and subjected her to a hostile work environment based on her sex, age, and in reprisal
when:

10. on May 2, 2017, Complainant was subjected to a PDI; and
11. on May 2, 2017, Complainant was given an Official Discussion.

On July 5, 2017, Complainant filed a second amendment to her complaint to further allege
discrimination based on her sex, age, and reprisal, when:

12. on June 10, 2017, Complainant was not paid for one hour of overtime worked;
13. on June 15, 19-21, 26-30, 2017, and other unspecified dates, Complainant was
bypassed for overtime; and
14. on June 23, 2017, Complainant was subjected to a PDI.

On July 26, 2017, Complainant’s third amendment to her complaint alleged discrimination based
on sex, age, and reprisal when:

15. on July 26, 2017, Complainant became aware that her sick leave request for July
12, 18-21, 2017, and other dates, were charged to 38 hours of annual leave;
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16. on July 25, 2017, Complainant’s request for sick leave was denied; and
17. on July 18-21, and 25, 2017, Complainant’s request for Family Medical Leave
(FMLA) coverage was denied.

The Agency accepted Complainant’s first and second amendments. With respect to her third
amendment, the Agency dismissed claim (17) for failure to state a claim because it constituted a
collateral attack upon proceedings of the Department of Labor.

On August 23, 2017, Complainant filed a fourth amendment to her complaint to include the
allegation that:

18. on August 25, 2017, Complainant became aware that her sick leave request for
August 17, 2017, was charged to 8 hours of annual leave.

The Agency proceeded to investigate all of Complainant’s accepted allegations.

Claim (1): Complainant claimed that the Postmaster at the Apex Post Office approved her to work
overtime at the Apex Post Office during the 2016 holiday season, but after working there three
days, management at the Durham Post Office prevented her from working at Apex more.
Complainant claimed that on November 17, 2016, she told the Supervisor, Customer Service
(SCS1) that she had worked overtime, and the next day she was told that she was not approved to
work at Apex. Complainant claimed that the Apex Postmaster approved her to return for overtime
on November 19, 2016, but she later learned that the Durham Postmaster blocked the opportunity
indefinitely. Complainant alleged that SCS1 refused to further discuss the matter because “there
is a large EEO pending.”

The Postmaster of Durham said that she received a call from the Postmaster of Apex asking if
Complainant could work at Apex. The Postmaster of Durham said that Complainant could not
because it was not in her bid structure.

Claims (2) and (3): Complainant claimed that she was denied overtime on November 21-23 and
25-30, 2016 and December 1, 2016. She explained that the supervisors of the Shannon Station
(SCS2 and SCS3) never approached her on those days asking her to stay on or come in to work on
her non-scheduled days. Complainant noted that two coworkers (CW1 and CW2) received
overtime because they were senior to her. However, Complainant believed that her age and sex
were factors because younger women were given more overtime hours than her. Complainant
contended that there was a local agreement that overtime was to be distributed equally.
Complainant further affirmed that the union steward observed her overtime hours were
consistently less than her coworkers. Complainant stated she has never been given a reason and
believed that she is perceived as an old woman who is bothersome to management.

The Manager, Customer Services (MCS) said that the supervisors determine who worked overtime
and that she approved the amount of overtime hours based on the needs of the service.
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SCS3 said that Complainant frequently took her lunch at the end of her tour, allowing her to clock
in and immediately clock out. As a result, SCS3 had no opportunity to have Complainant stay and
work overtime. Moreover, Complainant told SCS3 that her foot hurt and therefore, she could not
work longer than her regularly scheduled shift. SCS3 also explained that one of Complainant’s
non-scheduled days was Saturday, which was a difficult day to gain overtime because the facility
typically has a full staff and reduced window hours. SCS3 affirmed that there was no rule in the
clerk craft that required overtime to be distributed equally.

Claim (4): Complainant alleged that she was the only older woman who was limited to eight hours
on December 3, 2016. Complainant noted that SCS1 told her that upper management was cracking
down on clerk overtime hours at the Shannon Plaza Station.

Claim (5): Complainant claimed that she was sent home after working 6.5 hours on December 11,
2016, because she had not asked for permission from her supervisor before going to church.
However, all other coworkers who worked on Sunday were allowed to work at least 10 hours, and
postal support employees who worked that day worked at least 12 hours. Complainant said that
the Manager, Customer Services (MCS) is a bully who was trying to belittle and embarrass her
based on her prior EEO activity.

MCS said that Complainant reported to work before scheduled; she was scheduled to begin at 3:30
a.m., but reported at 1:00 a.m. She was also allotted one hour for lunch but took two hours. When
MCS questioned Complainant, Complainant said “I went to church, I’m sorry if that offended
you.” MCS then sent Complainant home.

Claim (6): Complainant said she was questioned pertaining to her reporting time on December 11,
2016, and for allegedly throwing a parcel at another employee. Complainant disagreed with the
PDI and said that she had a legitimate reason for arriving at 1:00 a.m. on December 11, 2016.
Specifically, the truck driver told her that he would be arriving at 1:00 a.m. Then, SCS3 told her
to work that day, but did not tell her when to arrive, so she reported at 1:00 a.m. Complainant
further denied throwing a parcel at another employee.

SCS3 explained that Complainant reported to work at 1:00 a.m. without permission and extended
her lunch without approval. Further, Complainant had been accused of throwing a parcel at an
employee.

Claim (7): Complainant identified several dates during the First Quarter 2017 on which she was
not scheduled for non-scheduled day overtime. Complainant believed, as with her other
allegations, that she was left out because she was the oldest woman and third senior employee.

SCS3 disputed that Complainant received no non-scheduled day overtime during this time period.
Rather, Complainant worked on April 1 and 8, 2017 because the Agency lost its PSE. Beyond
these days, SCS3 maintained that the facility tended to be fully staffed on Saturdays, reducing the
potential for overtime. MCS noted that during this time, Complainant had removed her name from
the overtime list.
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Claims (8) and (9): Complainant alleged between January 11, 2015 and January 11, 2017, that she
should have been paid “begin tour” overtime for arriving at 3:00 a.m. In addition, Complainant
contended that SCS3 handed her a small scrap of paper on January 11, 2017, that she received
from MCS instructing her to begin reporting to work at 5:00 a.m. Complainant said that she had
been given the opportunity to work 3:00 a.m. to noon because older male employees declined that
shift. However, within weeks of filing her EEO complaint, Complainant says her 3:00 a.m. to
noon shift was changed.

MCS denied any awareness of the written piece of paper. However, MCS said that Complainant
was not authorized to work overtime and “begin tour” deviations had to be requested, so she
instructed the supervisors to inform all of the clerks of their reporting time. SCS3 affirmed that
she was instructed to notify Complainant and several other employees of the schedule change. She
told Complainant to report at 5:00 a.m. because Complainant had been reporting out of schedule.

Claims (10) and (11): Complainant alleged that another SCS (SCS4) spoked to her informally
about wearing the postal window uniform when she reported at 4:00 a.m. on April 26, 2017.
Complainant claimed that he also talked to her about going to lunch within six hours of beginning
her tour. Complainant alleged that SCS4 subsequently gave her a PDI on or around May 2, 2017,
where they also discussed her working overtime and her schedule. Complainant questioned the
PDI because there was no uniform for mail processing clerks and that she inadvertently exceeded
her end tour, but neither incident should be a reason for a PDI. Complainant claimed that other
mail processing clerks wear what they want. Complainant claimed that she received the official
discussion on May 2, 2017, for failing to wear her window unit uniform to work; using
unauthorized overtime; and regarding her work schedule. Complainant disagreed with the official
discussion.

SCS4 said that he initially gave Complainant the official discussion, but when Complainant
refused to wear her uniform, he had a PDI with Complainant. SCS4 stated that other employees
wear their uniform, so he does not need to subject them to a PDI.

Claim (12): Complainant alleged that she worked through her lunch hour on June 10, 2017, but
yet another SCS (SCS5) refused to pay Complainant for having worked through lunch.
Complainant believed she was treated differently because of her EEO activity. Complainant
further believes the incident is a wage and hour violation.

SCS5 denied refusing to pay Complainant and there is no record that Complainant was not paid
for her time on June 10, 2017.

Claim (13): Complainant claimed that she was bypassed for overtime on several occasions in June
and July 2017. Complainant argued that overtime should be rotated among employees who have
signaled their willingness to work overtime, but Complainant stated she was told to leave in eight
hours and never was asked to stay on or come in early.

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SCS2 said that the clerks who worked overtime were senior to Complainant.

Claim (14): Complainant alleged that SCS5 subjected her to a PDI and charged her with giving
local police the access code to the postal building. The record demonstrates that Complainant had
arrived at work only to find the building empty. As a result, Complainant was scared and called
the police to have them check out the building. Complainant insisted that she did not give the
police the access code, but merely punched in the code and allowed police into the building. The
PDI indicated that Complainant called the police before calling a management official.

SCS5 said that the PDI was conducted to give Complainant an opportunity to explain why she
called the police and if she gave them the code to the door, that would be a violation of Agency
rules. There is no indication in the record that Complainant was disciplined for the incident.

Claim (15): Complainant claimed that she requested sick leave for July 12, 2017, for six hours and
for July 18-July 21, 2017, for 32 hours. Complainant claimed the MCS changed the leave to annual
leave. Complainant alleged the only explanation she was given for the change in her leave was
that SCS5 denied having done it. Complainant stated the only other person with authority to
change her leave status was MCS.

MCS affirmed that she inputted Complainant as having taken annual leave but did not see that
Complainant requested sick leave. Had Complainant told her about it, MCS would have fixed the
error. SCS2 said that the errors in Complainant’s leave balances were never brought to her
attention.

Claim (16): Complainant claimed that she left work under duress on July 25, 2017, and left a Form
3971 with SCS5. However, Complainant claimed that she was told her request for sick leave was
denied because she provided inadequate documentation; the documentation did not indicate that
Complainant was incapacitated for duty.

SCS5 explained that on this day, Complainant was instructed to do presort. Instead of following
instructions, Complainant asked to leave shortly before 7:00 a.m. claiming that she was sick.
Because Complainant’s request was unscheduled, SCS5 asked for a doctor’s note. The note
Complainant brought in stated she was seen at 3:00 p.m., which was after the end of Complainant’s
tour. The note also gave no details as to Complainant’s illness and did not provide any explanation
to support Complainant’s absence. Absent sufficient documentation, SCS5 denied Complainant’s
request.

Claim (18): Complainant claimed that she called the unscheduled leave hotline to request eight
hours of sick leave and credited it to her FMLA case. Complainant believed that MCS changed
her leave status for that day from sick to annual.

MCS said she never received notification of Complainant’s leave request. As with Claims (15)
and (16), if MCS had been informed of the error, she would have corrected all of these issues.

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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 (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

The Agency first determined that Complainant failed to establish a prima facie case of
discrimination because she could not show that she was treated less favorably than similarly
situated individuals outside of her protected classes. Assuming, however, that Complainant
established a prima facie case of discrimination, the Agency accepted management’s explanations
as legitimate and nondiscriminatory and concluded that Complainant failed to demonstrate those
reasons to be pretext for discriminatory or retaliatory animus. The Agency also concluded that
Complainant failed to demonstrate she was subjected to a hostile work environment because her
allegations were not objectively sufficiently severe or pervasive. Accordingly, the Agency found
that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment
as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency did not address the full scope of her complaint
in the decision but offers no further detail. Complainant claims that the Agency’s illegal conduct
caused her financial hardship. Accordingly, Complainant requests that the Commission reverse
the final agency decision.

ANALYSIS AND FINDINGS

As a preliminary matter, we note that Complainant does not challenge the Agency’s dismissal of
Claim (17). Accordingly, we do not disturb that part of the Agency’s final decision.

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”).

Hostile Work Environment

To establish a claim of discriminatory 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 his statutorily protected class; and (4) the harassment affected a term
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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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).

In short, 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 a protected basis -- in this case, because of her sex, age, or prior
protected EEO activity. Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. After a careful review of
the record, including Complainant’s arguments on appeal, we find that Complainant has not
demonstrated that the alleged incidents were sufficiently severe or pervasive to establish a hostile
work environment. We note that not every unpleasant or undesirable action which occurs in the
workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356
(Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009).

Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile
work environment, we find that Complainant has not shown that any of the alleged incidents were
motivated by discriminatory or retaliatory animus as discussed above. The record reflects that the
alleged incidents were more likely the result of routine supervision, personality conflicts, and
general workplace disputes and tribulations. For example, regarding claim (1), Complainant was
disallowed overtime at the Apex Post Office because it was not within her bid structure. Further,
Complainant was disallowed overtime on several other occasions (e.g. claims (2), (3), (4), (7), (8),
and (13)) because management was attempting to limit it based on the needs of the facility, because
of seniority rules, and/or because the facility was fully-staffed on her non-scheduled day. As for
claim (9), MCS explained that Complainant was not entitled or authorized to work overtime and
that she put a stop to other clerks who were doing the same thing once she discovered the practice.

Additionally, with respect to claim (5), MCS affirmed that Complainant was sent home because
she reported to work more than two and a half hours early and had taken a long lunch break.
Further, Complainant responded in a disrespectful manner when she inquired about her
whereabouts. With regard to claim (8), MCS confirmed that she instructed supervisors to inform
clerks that they were to report at their regular begin-tour time because several had been reporting
out-of-schedule. As to claims (10) and (11), Complainant received a PDI and an official discussion
regarding uniform policy and reporting time/overtime violations. Complainant received the PDI
in claim (14) because she called the police and potentially gave them access code information in
violation of Agency rules and policies.

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Regarding claim (12), Complainant refused to follow her supervisor’s instructions to take a lunch
break; therefore, Complainant was paid for eight hours. With respect to claims (15) and (18), MCS
affirmed that she may have entered Complainant’s leave incorrectly for the dates in question, but
if Complainant had raised the matter with her, she would have corrected any errors. There is no
evidence indicating that Complainant reported these errors. Regarding claim (16), the record
indicates that Complainant was denied sick leave because her documentation was insufficient
under the Agency’s leave policies.

The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so
objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The Commission finds that Complainant has not
established that she was subjected to a hostile work environment. Moreover, to the extent
Complainant claims that she was subjected to disparate treatment, the Commission finds that, as
discussed above, Complainant has not proffered any evidence from which a reasonable fact finder
could conclude that the Agency’s explanation for its actions was pretext for discrimination or
reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.

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 decision.

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.
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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.

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.

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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

June 20, 2019
Date