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

Equal Employment Opportunity Commission

Sep 5, 2019

2019002297 (E.E.O.C. Sep. 5, 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
(Eastern Area),
Agency.

Appeal No. 2019002297

Agency No. 4C080008418

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, from a June 21, 2018 Final Agency Decision
(“FAD”) concerning an 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Sales, Services/Distribution Associate ("SSDA"), PS-06, at its Fort Dix Branch in Trenton,
New Jersey.

On November 30, 2018, Complainant filed an EEO complaint alleging that she had been
subjected to a hostile work environment and discrimination by the Agency on the bases of race
(African-American), sex (female), color (black), age (51), and reprisal (prior protected activity)
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.
2019002297

2
1. On January 31, 2018, March 1, 2018, and April 2, 2018, her first level supervisor
(“S1”) forced her to work overtime,2

2. On January 31, 2018, March 1, 2018, April 2, 2018, and April 17, 2018, S1 yelled
at her,

3. Throughout the relevant time frame and ongoing, S1 micro-managed her,

4. In January 2018 and on April 26, 2018, S1 instructed her co-workers not to talk to
her,

5. On April 20, 2018 and May 15, 2018, S1 singled her out during tour talks, and

6. On May 15,2018, she was issued a Seven (7) Day Suspension.

As an SSDA, Complainant’s primary function was to man the sales window and phone in order
to provide customer service support services for products at the Fort Dix Branch. She was also
responsible for entering and tracking inventory and incoming and outgoing mail in computerized
systems. Her supervisor, S1 (African American/Hispanic, black, male, 58), a Manager Customer
Services, EAS-18, divided his time between the Fort Dix Branch and the McGuire Post Office.
The two other employees at Fort Dix Branch who, like Complainant, could perform clerk craft
duties (“C1” and “C2” bases not provided) divided their time among other post offices as well.
As a result, Complainant was typically the only clerk on duty at the Fort Dix Branch after 1:00
PM. S1 returned around 4:00 PM, the sales window closed at 4:30 PM, Complainant would
complete close out tasks, and leave when her shift ended at 5:00 PM.

In the mornings, Complainant, C1 and C2, also took on mail handler duties, such as placing mail
in cages and taking them out for the driver. Complainant alleges that as she completed her tasks,
S1 would micromanage her by “telling her when to start sorting letters, when to stop sorting
letters and begin sorting flats, when to change locks in the box section, etc.” Complainant also
alleges that she gets yelled at by S1 “on any given day,” specifically referencing the unscanned
UPS and FedEx parcels, and an April 17, 2018 Safety Talk. Complainant alleges that S1
attempts to intimidate her by coming over and interrupting her when she is speaking to anyone,
“stalks” her, and stands behind her not saying anything.

On January 31, 2018 March 1, 2018 and April 2, 2018 the Fort Dix Branch received a shipments
of parcels from UPS around 2:00 PM, and, on March 1, 2018, a pallet of parcels from FedEx at
9:00 AM.

2 Complainant alleged that she was forced to work overtime on March 2, 2018, however, S1 and
the Agency’s payroll documents establish that the alleged actions took place on March 1, 2018.
Complainant testified that she filed a separate grievance for each instances of alleged forced
overtime in Claim 1, and that she believes they are all settled. The Agency indicated to the EEO
Investigator it did not have grievance or settlement documentation for this matter.
2019002297

3
With each delivery, S1 instructed Complainant to scan them as Arrival at Unit (“AAU”), and
each time, S1 returned to the office to find that the parcels “had not been touched.” When S1
would remind Complainant to scan them before she left for the day, she reminded that she was
“only one person” and she was not on an overtime list. Complainant states that if she had time to
scan the parcels prior to closing the window, she would, however, from 1:00 pm until close, she
is the only employee at the window and answering phones. Complainant’s time sheets reflect
that she was on the clock in unapproved overtime status for 28 minutes on January 31, 2018, 1
hour and 24 minutes on March 1, 2018, and 35 minutes on April 2, 2018.

The May 14, 2018 Notice of 7 Day Suspension (“NOS”), later rescinded, charged Complainant
with “failure to follow instructions” because on May 1, 2018 and May 8, 2018, she left without
scanning FedEx and UPS parcels delivered after 9:00 AM. According to Complainant, S1’s
insistence that UPS or FedEx parcels be scanned the same day they arrive is an example of his
alleged attempts to goad her into a “shouting match” so he could take disciplinary action against
her. She recounts that S1 previously instructed her and her coworkers not to stay past their
scheduled shift if they were not authorized for overtime.

S1 maintains that Complainant was never “forced” to work overtime, rather, she “decided to
extend her day” by not prioritizing her work. According to S1, Complainant would “socialize for
extended amounts of time with customers not conducting postal business,” by, among other
things, inquiring how their children were doing in school and recommending restaurants. S1 also
emphasizes that for each of the dates at issue, Complainant was the only clerk available to scan
the parcels, she was not disciplined for the unauthorized overtime, and the overtime included an
additional 10 minute break, and a 5 minute wash up. Moreover, S1 testifies that the unauthorized
overtime and NOS were warranted for failure to follow instructions because scanning parcels the
day they are delivered is required under local directives.

Complainant describes S1 as “yelling” and “very nasty” when he told her to follow his
instructions. A witness (“W1”), a Labor Custodial, PS-04, testified that he observed S1
micromanage Complainant “every day,” and described the overall work environment as
“stressful.” W1 confirmed that during the April 17, 2018 Safety Talk, when Complainant shook
her head indicating she did not agree with S1, S1 responded “follow my instructions.” Another
witness (“W2”), a Mechanic, PS-09, who was at Fort Dix Branch from December 2017 through
March 2018, testified that she observed S1 show “hostility” toward Complainant through their
interactions, recounting an instance where S1 “was glaring so hard” at Complainant that it made
W2 feel “uncomfortable” standing next to her. W2 also stated that on “numerous occasions,” S1
told her not to talk to Complainant even if it was work related. A third witness (“W3”) provided
a March 2, 2018 note to Complainant, which stated that during her approximately 1 month
working at Fort Dix Branch, she observed S1 “constantly picking” on Complainant “every day”
they worked together. W3 describes S1’s demeanor toward Complainant as “harassing,”
“disrespectful,” and “demeaning.”

2019002297

4
S1 testifies that he instructs all of his clerks on when to change tasks, if, based on his
observations, it meant the work would get done faster.
He also alleges that when he attempts to give Complainant instructions, she yells, “don’t talk to
me, I know what I am doing.” S1 denies ever yelling at Complainant about scanning parcels, but
contends that she “yelled and screamed” at him, accusing him of forcing her to work overtime.
According to S1, “Complainant would not permit anyone to raise their voice in any derogatory
manner towards her… no one in the office dares raise their voice to [her], we are all aware of her
temper and combative personality.” S1 also testified that during breaks, Complainant would
“attempt to harass [C1 and C2] to be uncooperative with management.” Although C1 and C2 did
not respond to the EEO Investigator’s request for affidavit testimony, they provided written
statements to S1. C1 confirms that Complainant referenced being uncooperative with
Management during a conversation. C2 states, “As the manager of the Trenton Annex, I have
instructed [W2] on numerous occasions to do her work and not distract her coworkers from
doing their work. She likes to stop and talk to everyone.”

At the conclusion of its investigation, the Agency provided Complainant with a copy of the
report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an
EEOC Administrative Judge (“AJ”). When Complainant did not request a hearing within the
thirty (30) day time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

The FAD concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS

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, (“EEO MD-110”) 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”).

Conflicting Witness Testimony

Pursuant to 29 C.F.R. § 1614.108(b), an agency shall develop an impartial and appropriate
factual record upon which to make findings on the claims raised by the written complaint and
define an appropriate factual record as one that allows a reasonable fact finder to draw
conclusions as to whether discrimination occurred.

2019002297

5
However, the complainant is provided an opportunity to cure defects in an investigation, after
reviewing the report of investigation by notifying the agency (in writing) of any perceived
deficiencies in the investigation or by requesting a hearing before an EEOC Administrative
Judge (“AJ”). See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I.

Here, a significant portion of the record consists of testimony by multiple witnesses offering
conflicting characterizations of both S1 and Complainant’s motivations and conduct toward each
other during the relevant time frame and events. By choosing not to request a hearing before an
AJ, Complainant waived the opportunity to develop the record through discovery and to cross
examine witnesses. See Tommy O. v. United States Postal Serv., EEOC Appeal No.
0120152090 (Jun. 8, 2017). Upon review, we find that even without determining which witness
testimony provides the most credible account, the record is sufficiently developed to allow us to
draw conclusions as to whether discrimination occurred.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Claim 1: Forced to work Overtime

The Agency’s legitimate, nondiscriminatory reason for requiring Complainant to work overtime
on January 31, 2018, March 1, 2018, and April 2, 2018 was that it acted in accordance with
Agency policy and regulations.
2019002297

6
S1 testified that Complainant was the only SSAD available and the work “had to get done,”
because, under regional directives, post offices were “to refrain from leaving parcels in the
building without acknowledging their arrival in the building.” The record contains a mandate
from the Agency’s South Jersey District, with Delivery Standard Operating Procedures (“SOP”),
in conjunction with the Eastern Area Red Line SOP that includes, among other things, a
requirement that Managers check that each parcel that could not be delivered that day has been
located and scanned into the Product Tracking System.

The record further supports that in light of the circumstances, S1 acted within the scope of his
authority. Article 3 of the Collective Bargaining Agreement (“CBA”) between the Union and the
Agency provides that Management has the right, under 3.A, direct employees of the Employer in
the performance of official duties; 3.C maintain the efficiency of the operations entrusted to it;
and 3.D determine the methods, means, and personnel by which such operations are to be
conducted. Also, under Article 8 § 5 Pt. G of the CBA, full-time employees not on the
"Overtime Desired" list may be required to work overtime if the employees on the “Overtime
Desired” list already met the maximum overtime hours. The Employee and Labor Relations
Manuel (“ELM”) 434.11 provides that “as the needs of the service require, the postmaster or
installation head may require employees to perform work that is in excess of 8 paid hours in a
day or 40 paid hours in a week.” It is undisputed that Complainant was a full time employee and
the only clerk working during the dates in question.

Complainant contends that because the other two employees at the Fort Dix location had a
different relationship with S1, they would not have been required to stay if they declined the
overtime. However, there is no evidence to support this. Further, she does not dispute that she
was the only craft employee available. She does not address the above-referenced local
directives, which contradict her argument that the scanning could have been left for the next day.
We note that the duration and frequency of the unauthorized overtime at issue demonstrates
minimal harm, and she was not subject to discipline for taking unauthorized overtime.
Complainant’s arguments are insufficient to establish the Agency’s explanation for its actions in
Claim 1 were pretext for discrimination.

Claim 6: Notice of Suspension

The Agency’s legitimate nondiscriminatory reason for issuing the May 15, 2018 Notice of
Suspension (“NOS”) was Complainant’s failure to follow S1’s instructions on May 1, 2018 and
May 8, 2018. S1 had instructed Complainant to scan the UPS and FedEx parcels delivered earlier
in the day, before she left, and Complainant left without scanning any of them.

The Postmaster for the Trenton Office, who was the concurring official for the NOS testified that
the NOS was ultimately rescinded. The record reflects that Complainant filed a grievance on the
matter, which was denied in a Step 2 decision. On August 9, 2018, the matter was resolved via
settlement agreement. As the record offers no evidence that the adverse action actually occurred,
Complainant has not established disparate treatment for Claim 6.
2019002297

7
Harassment/Hostile Work Environment

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 race, color, age, and/or prior EEO activity. Only if
Complainant establishes both hostility and motive, will the question of Agency liability present
itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002
(Jun. 18, 1999).

As the Agency successfully established a legitimate nondiscriminatory reason for its actions in
Claim 1, we find Complainant has not established a discriminatory motivation exists to establish
harassment. To the extent Complainant alleges that the act of issuing the NOS was harassment,
even though it was later rescinded, we find sufficient evidence that the Agency’s legitimate
nondiscriminatory reasons for Claim 1 also apply to the NOS in Claim 6.

As for Claims 2, 3, 4, and 5, we note 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 Serv., 523 U.S. 75, 81 (1998). Consistent with the Commission's policy
and practice of determining whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly found that claims of
a few isolated incidents of alleged harassment usually are not sufficient to state a hostile work
environment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health & Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995).

Having thoroughly reviewed the record, we find Complainant has not established discrimination
as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint.

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.
2019002297

8
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.
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.

2019002297

9
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 5, 2019
Date