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

Equal Employment Opportunity Commission

Feb 27, 2019

0120170926 (E.E.O.C. Feb. 27, 2019)

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

Mao P.,1
Complainant,

v.

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

Appeal No. 0120170926

Agency No. 4K-210-0050-16

DECISION

On January 9, 2017, 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
December 9, 2016, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 decision (FAD).

ISSUE PRESENTED

The issue presented is whether the Agency’s FAD erred in finding that Complainant did not prove
that she was subjected to discrimination and/or harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at
the Agency’s Baltimore-Brooklyn Curtis Bay Branch in Baltimore, Maryland. On June 8, 2016,
Complainant filed an EEO complaint alleging that the Agency subjected her to harassment, and
discriminated against her on the bases of disability (Back/Stress) and age (61) 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.
0120170926

2

(1) On a date to be specified in October 2015, after requesting to move from the fifth
floor, she was not immediately moved;
(2) On dates to be specified, the supervisor used profanity in front of her;
(3) On January 30, 2016, she was charged eight hours Sick Leave after requesting only
four hours;
(4) On or around February 27, 2016, her footstool was removed from under her desk;
(5) On February 27, 2016, she was charged eight hours Annual Leave after requesting
only four hours;
(6) On March 3, 2016, someone from management said, “You talk too loud” and
threatened to move her back to the fifth floor;
(7) On dates to be specified, a co-worker harassed her;
(8) On March 10, 2016, she was informed that the supervisor had been talking to co-
workers about her and said she was going to send her back to the fifth floor; and
(9) On a date to be specified, she was moved and isolated from her coworkers.

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). As Complainant failed to request either a
hearing or a final decision, the Agency issued the FAD pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination and/or harassment as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that witnesses lied in their affidavits. She
indicates that she lived with the threat of being returned to the fifth floor, which was an option that
she feared and dreaded. She also maintains that as a result of managements actions, in moving her
to a different office, she was isolated and left to work alone. Finally, she indicates that not all
witnesses were interviewed.

In response, the Agency contends, among other things, that Complainant failed to establish a prima
facie case of discrimination with regard to the allegations cited in the complaint. However, even if
she had established a prima facie case, management articulated a legitimate, nondiscriminatory
explanation, and Complainant did not present evidence that management’s explanation was pretext
for discrimination. The Agency also maintains that Complainant’s claims on appeal are based
solely on her disappointment and her unsupported opinions. The Agency requests that the FAD
be affirmed.
ANALYSIS AND FINDINGS

Standard of Review

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).
0120170926

3
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”).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume, arguendo, that Complainant
established a prima facie case of discrimination as to all of her bases, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. The record reveals that following an
Occupational Safety and Health Administration determination, all employees were to be moved
from areas of the fifth floor. Complainant asserted in claim no. 1, that she should have been
immediately moved to the first floor because she was afraid of being on the fifth floor in the event
of an emergency evacuation. Complainant alleged that management should have considered
placing her on the first floor first because of her age. Management explained that Complainant
was relocated to the first floor as soon as a space was found. Regarding claim no. 2, Complainant
alleged that her supervisor (S1), and the younger ladies in the office used profanity in front of her.
She indicated that she alerted management that she did not like it. Management maintained that
following Complainant’s complaint S1 apologized, and a stand-up talk was given to all employees
regarding the prohibition of using profanity in the work place.

Regarding claims nos. 3 and 5, Complainant alleged that she was charged eight hours of Annual
and Sick leave when she had only requested four hours of each kind of leave. Management
explained that previously the Office of Workers Compensation (OWCP) covered four hours of
leave, but OWCP changed its rules, and maintained that unless the leave was related to a covered
0120170926

4
disability it would not provide the four hours that had previously been covered; therefore,
Complainant was charged a full 8 hours of leave for both days. Management indicated that
Complainant and other employees had been briefed on the rule change.

With regard to claim no. 4, Complainant alleged that S1 removed a footstool from under her desk.
Complainant alleged that S1 cared more about her coworker’s disability than hers. S1 explained
that she let a coworker use the footstool because she was experiencing pain. S1 indicated that the
footstool had belonged to another employee that used it as part of a reasonable accommodation.
When Complainant took over the desk, the footstool remained. S1 indicated that she had only
seen Complainant use it to set her purse on it, so when another employee actually needed it, she
let her use it. S1 indicated that she offered to give it back to Complainant, but Complainant told
her that the employee could have it.

Regarding claim nos. 6 and 7, Complainant maintained that management told her “you talk too
loud.” She believed this was a threat and that she would be moved back to the fifth floor.
Complainant also maintained that she was harassed by a coworker. Management explained that
Complainant and the other employees from the fifth floor were moved to the first floor, but they
were in close quarters and many issues arose. For example, Complainant complained that her
coworker played the radio too loudly, so loud that she could not hear customers on the telephone.
Complainant complained first to the coworker and when that did not work, S1 was told about the
matter. S1 indicated that she spoke to Complainant and the four other employees in the work area,
and they all complained that their space mates talked too loudly. S1 indicated that she notified
each employee that they talked too loudly and maintained that if they did not learn to get along she
would have to separate them and/or change their schedule. Likewise, in claim no. 7, Complainant
alleged that she was harassed by a coworker, when the coworker sang in-lieu of playing the radio.
S1 indicated that she instructed them to get along or be moved. This was stated to all four
employees in the office.

Regarding claim no. 8, Complainant stated that a coworker told her that S1 was talking about her.
S1 indicated that she had a conversation with a manager regarding Complainant not being returned
to her unit because it was known that Complainant was not getting along with her coworkers. S1
indicated that this was a private conversation and could have only been know if someone had ease
dropped.

Finally, regarding claim no. 9, Complainant alleged that she was moved and isolated from her
coworkers. Management explained however that after witnessing an argument where Complainant
verbally attacked her coworker, management located a space and offered it to the four employees
in Complainant work space. Complainant volunteered to take the space and thanked management
for their actions.

As noted above, we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions and Complainant did not demonstrate that those reasons were pretext for discrimination.
We also note that, on appeal, other than Complainant’s conclusory statements, she has not provided
0120170926

5
any persuasive evidence which suggests that discriminatory animus was involved with regard to
the Agency’s actions.

With regard to Complainant’s claim of harassment, the FAD found that the incidents complained
of were normal business interactions between management and employees, and that even when
considering the incidents in total, they were not severe or pervasive enough to establish a hostile
work environment. We agree. Furthermore, we find that under the standards set forth in Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by the Agency were motivated
by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not prove that she was
subjected to discrimination and/or harassment is AFFIRMED.

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.
0120170926

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

February 27, 2019
Date