Sandra F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 12, 2019

2019000067 (E.E.O.C. Apr. 12, 2019)

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

Sandra F.,1
Complainant,

v.

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

Appeal No. 2019000067

Hearing No. 550-2017-00105X

Agency No. 1E-891-0014-16

DECISION

On August 18, 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
July 19, 2018 final order concerning an equal employment opportunity (EEO) complaint claiming
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

During the period at issue, Complainant worked as a Postmaster, EAS-18, at the Agency’s Post
Office in Jackpot, Nevada.

On June 14, 2016, Complainant filed a formal EEO complaint claiming the Agency discriminated
against her on based on race (Caucasian), sex (female), age (58), and retaliation when on February
24, 2016, she was given an investigative interview and denied medical attention.

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.
2 2019000067

The record developed during the investigation into the complaint revealed that on June 14, 2016,
Complainant attended a staff meeting at the Agency’s Processing and Distribution Facility in a
Las Vegas. The facility’s acting plant manager (female, African-American, age 48) led the
meeting. According to Complainant, the acting plant manager was yelling unprofessionally. The
acting plant manager stated that Complainant was disruptive and interrupted by asking to be
excused from the meeting. After the meeting, the acting plant manager attempted to verbally
counsel Complainant. Complainant stated that she had recorded the staff meeting and that she
intended to record the acting plant manager’s verbal counselling. The acting plant manager
ordered Complainant not to do so and demanded that Complainant delete her recordings.

The acting plant manager directed a pre-disciplinary investigative interview regarding whether
Complainant had been recording employees within the facility without proper authorization. The
acting plant manager stated Complainant became argumentative and insisted that she had notified
all present about her recording. Complainant stated that the acting plant manager screamed and
threatened to have Complainant’s phone confiscated. The investigative interview ended with
Complainant complaining about her blood pressure. Complainant then left the facility to receive
medical treatment for anxiety and chest pain.

After 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 EEOC (AJ). Complainant
requested a hearing. On July 2, 2018, the Agency moved for a decision without a hearing. On
July 3, 2018, the AJ granted the Agency’s motion and issued a decision without a hearing. On July
19, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

We examined whether it was appropriate for the AJ to have issued a decision without a hearing on
this record. The Commission’s regulations allow an AJ to issue a decision without a hearing when
he finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s
regulation was patterned after the summary judgment procedure set forth in Rule 56 of the Federal
Rules of Civil Procedure. The Supreme Court of the Unites States has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, the EEOC AJ’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact-finder could find in favor
of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.
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In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. Here,
Complainant has failed to point with any specificity to particular evidence in the investigative file
or other evidence of record that indicates such a dispute. For the reasons discussed below, we find
that, even construing inferences from the undisputed facts in favor of Complainant, no reasonable
fact-finder could find in Complainant’s favor. Therefore, we find the AJ properly issued his
summary judgment decision.

Complainant claimed the Agency subjected her to disparate treatment discrimination because of
her white or Caucasian race, her and in reprisal for prior-protected EEO activity. To prevail,
Complainant had to satisfy the Supreme Court’s three-part evidentiary test from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant had to establish a prima facie
case by demonstrating she received an adverse employment action under circumstances that
supported an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).
The second burden fell on the Agency to articulate legitimate and nondiscriminatory reasons for
its actions. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v.
Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Third, Complainant had
to show, by a preponderance of the evidence, that Agency explanations were pretexts for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); Pavelka v. Dep’t
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We concur with the AJ’s conclusion that the acting plant manager conducted the investigative
interview for a non-discriminatory reason. Specifically the acting plant manager stated that she
had perceived Complaint's voice recording within the facility as possibly actionable misconduct.
Complainant has failed to present any evidence that the Agency's proffered reason was a pretext
designed to mask discrimination on the basis of race, age or reprisal. In the context of harassment,
we also concurred with the AJ’s assessment, that the acting plant manager’s treatment of
Complainant marked a singular and unfortunate episode on June 14, 2016, as opposed to a
pervasively and severely hostile workplace.

Moreover, the acting plant manager’s actions regarding Complainant’s physical duress did not
amount to a denial of medical care. Ultimately, the senior plant manager intervened and ordered
an administrative assistant to transport Complainant an occupational health clinic.

Finally, we gave serious consideration to this claim in terms of reprisal. See Carroll v. Dep’t of
the Army, EEOC Request No. 05970939 (Apr. 4, 2000). To constitute retaliation, the Agency’s
action needed not materially affect employment. See Lindsey v. U.S. Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
Instead, Title VII prohibits adverse treatment based upon a retaliatory motive or actions reasonably
likely to deter a charging party from engaging in EEO protected activity. Id. We find that
Complainant’s efforts to record discussions among her coworkers on-the-job was not protected
activity for purposes of Title VII.
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In its appellate brief, the Agency admitted that Complainant had, at least twice previously, engaged
in EEO activity, in 2008 and again in 2011. Nevertheless, Complainant simply did not demonstrate
the requisite nexus between those prior EEO activities and the acting plant manager’s
unnecessarily adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No.
01A00340 (Sep. 25, 2000).

CONCLUSION

Based on the foregoing analysis, EEOC AFFIRMS the Agency’s final order implementing the
AJ’s decision without a hearing and finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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).
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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

April 12, 2019
Date