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

Equal Employment Opportunity Commission

Jul 18, 2017

0120151657 (E.E.O.C. Jul. 18, 2017)

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

Juliette K.,1
Complainant,

v.

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

Appeal No. 0120151657

Hearing No. 490-2013-00092X

Agency No. 4C-370-0121-12

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 19,
2015, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

Complainant worked as a Full-Time City Carrier at the Mendenhall Station in Memphis,
Tennessee. On September 26, 2012, Complainant filed an EEO complaint in which she alleged
that the Customer Services Supervisor, her immediate supervisor (S1), and other managers
harassed her because of her sex (female) and prior protected EEO activity when:

1. Beginning in January 2012 and continuing, Complainant’s cut-offs were longer than
what was on the standard form 3996;

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.
0120151657

2
2. In mid-May through the end of June 2012, management stopped providing the
standard form 3996;

3. Beginning on April 4, 2012, S1 denied Complainant overtime;

4. Beginning June 1, 2012, Complainant was given cut-offs that were further from her
delivery route than those given to her coworkers;

5. Beginning June 14, 2012, S1 denied Complainant non-scheduled day overtime; and

6. On unspecified dates, S1 assigned Complainant overtime on the street while assigning
her coworkers overtime in the office and permitted her coworkers to take extended
breaks, walk the floor, and talk to each other.

(1) Beginning in January 2012 and continuing, Complainant’s cut-offs were longer than what
was on the standard form 3996. Complainant described a cut-off as auxiliary assistance overtime
provided on a delivery route. Investigative Report (IR) 77. In the event that a carrier determines
that she will be unable to complete her assigned delivery route, she would be required to
complete Form 3996 in order to obtain management’s approval to utilize overtime or obtain
assistance. Failure to complete this form could result in the carrier being disciplined for
unauthorized use of overtime. Paul Biggs, Protect Yourself – Use PS Form 3996, (June 30,
2017, 9:30 AM PST), http://www.nalcbranch40.com/wp-content/uploads/2015/11/Tip-of-the-
Month-November-2015.pdf. Complainant averred that S1 assigned her cut-off routes that were
longer than what was estimated on the 3996 form. She stated that cut-offs with one-hour
estimates on the 3996 form would actually take between one and a half to two hours to complete,
and that after she finished, S1 would badger her about why she took so long. IR 77, 123-24. She
also stated that S1 had been assigning her cut-offs knowing that she would be unable to complete
them within the allotted time set forth on the 3996 form. IR 77. S1 denied that she singled
Complainant out. She averred that cut-offs were distributed to all of the carriers in the same
manner. IR 99.

(2) In mid-May through the end of June 2012, management stopped providing the standard form
3996. Complainant averred that management was responsible for providing carriers with 3996
forms, and that S1 failed to provide her with those forms. She acknowledged, however, that S1
had informed her that the Mendenhall Station had run out of 3996 forms, and that they were on
back-order. IR 79, 99.

(3) Beginning on April 4, 2012, S1 denied Complainant overtime. Complainant averred that she
was denied overtime on April 4, 2012, and again on June 27, 2012. IR 80. S1 responded that the
assignment of overtime was based on the needs of the service and considerations of equitability.
IR 106, 108. Records documenting overtime indicate that Complainant’s name appeared on the
Overtime Desired list and that she had logged overtime during every pay period in 2012. IR
251-359.

0120151657

3
(4) Beginning June 1, 2012, Complainant was given cut-offs that were further from her delivery
route than those given to her coworkers. In essence, Complainant averred that on February 4,
2012 and on June 1, 12, 19, 20, 29 and 28, 2012, S1 had assigned her longer cut-off deliveries
than she had assigned to Complainant’s fellow carriers. She also averred that S1 would refuse to
change her cut-off routes, but would do so for other carriers. IR 78. S1 responded that cut-off
routes were assigned according to locations and availability of carriers and vehicles. IR 100-04,
117.

(5) Beginning June 14, 2012, S1 denied Complainant non-scheduled day overtime. Although
Complainant stated in her formal complaint that the denials of non-scheduled day overtime
began on June 14, she identified the dates of January 5, 12, 19, and 26, 2012, February 2, 9, and
16, 2012, and June 14 and 21, 2012, as the dates on which she was allegedly denied non-
scheduled day overtime. She also averred that there were days that she was denied non-
scheduled day overtime in March, April, and May, but that she did not record those dates. IR 80-
81. S1 reiterated that overtime was distributed equally but depended on the needs of the service
during particular pay periods. IR 118-19, 124. As previously noted, Complainant had worked
overtime hours during every pay period within calendar year 2012.

(6) On unspecified dates, S1 assigned Complainant overtime on the street while assigning her
coworkers overtime in the office and permitted her coworkers to take extended breaks, walk the
floor, and talk to each other. Complainant averred that S1 was “watching her every move,”
would constantly question her about why she was late in her deliveries, why she was taking
extended breaks, and why she was talking when she should have been casing her mail. IR 81.
She also averred that S1 would almost always assign her overtime out on the street making
deliveries while allowing several of her coworkers to work their overtime within the office. IR
82-85. S1 maintained that overtime assignments, whether in the office or on the street, were
made in accordance with the needs of the service and the availability of personnel and
equipment. She averred that workplace rules applied to everyone and that no employees were
allowed to take extended breaks, walk around the floor, or engage in idle conversation. IR 108-
110, 117-20.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew her request. Consequently, 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.

ANALYSIS AND FINDINGS

To establish a claim of 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 classes; (4) the harassment affected a term or condition of employment
0120151657

4
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 v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). 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).

Therefore, in order to establish her harassment claim, Complainant must show 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. Only if Complainant
establishes both of those elements, motive and hostility, will the question of Agency liability
present itself.

To establish motive, Complainant must prove that in taking the actions described above, S1
harbored unlawful considerations of her sex and past EEO activity. See Aldaberto P. v. Dept. of
Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016). She may do so by pointing
out such weaknesses, inconsistencies, or contradictions in S1’s explanations for those actions
that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo
v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for
reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).

When asked by the investigator why she believed that S1 was motivated by unlawful
considerations of her gender, she responded that S1 had given several male carriers more
desirable cut-offs and had shown favoritism toward those carriers in doling out overtime
assignments. IR 78, 80. She acknowledged, however, that sex did not play a role in the other
actions at issue. IR 79, 81, 84. When asked whether her prior EEO activity was a factor in S1’s
actions, Complainant replied that she had initiated seven EEO complaints between March 2000
and June 2012, that two of those complaints were in the formal stage, that S1 was aware of her
prior complaints, and that S1 gave her longer cut-offs, denied her overtime, and scrutinized her
more closely than she scrutinized her coworkers in order to retaliate against her. IR 78-80, 84,
86, 99, 231-57. In support of her claim, she presented affidavits from several other carriers, both
male and female, who attested to the fact that Complainant was denied overtime, harassed about
her delivery times, and given longer cut-off routes. IR 183, 191, 197, 204, 220, 226. However,
none of these witnesses identified or described any occurrences that shed light on S1’s
motivation for taking those actions. Consequently, the evidentiary record lacks any documents
or testimony that contradicts S1’s explanations or calls S1’s veracity into question. We therefore
find, as did the Agency, that Complainant failed to establish the existence of a discriminatory or
retaliatory motive on the part of S1 in connection with the six incidents comprising her
harassment claim.

Even if Complainant were to establish the existence of an illegal motive on the part of S1, she
would still have to show that S1’s actions were severe or pervasive enough to alter the conditions
of her employment or otherwise engender a hostile work environment.
0120151657

5
Complainant must bear in mind that anti-discrimination statutes are not general civility codes
designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998). In this case, every one of the actions that S1 undertook
involved routine aspects of Complainant’s job as a carrier, including length and distribution of
cut-off routes, distribution of overtime opportunities, and supervisory monitoring of employee
performance. None of these incidents, either singly or collectively, is severe or pervasive
enough to rise to the level of abuse on par with a racial epithet or otherwise alter Complainant’s
work environment. We therefore agree with the Agency that Complainant has not established
the level of hostility necessary to support a finding of discriminatory harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant was not discriminated against as alleged.

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.
0120151657

6
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. 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

July 18, 2017
Date