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

Equal Employment Opportunity Commission

Sep 15, 2017

0120152133 (E.E.O.C. Sep. 15, 2017)

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

Sharon S.,
Complainant,

v.

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

Appeal No. 0120152133

Agency No. 1C-441-0042-14

DECISION

The Commission accepts Complainant’s appeal from the May 5, 2015 final agency decision
(FAD) 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 Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k)
(1978). The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee (PSE) Mail Processing Clerk at the Agency’s Processing and Distribution Center in
Akron, Ohio.

On April 25, 2014, Complainant alleged that she was appointed Lead Clerk after management
was unable to appoint a regular clerk. Complainant claimed that she was told that she would also
be trained as a 204B acting supervisor, but after another employee was trained. Complainant
stated that she was given a book to study and told that she would be trained on the computer.
Complainant claimed that her regular salary was $15.26 an hour at Level 6, but the Lead Clerk
position was a Level 7 position with an hourly rate of $16.22. Complainant alleged that she

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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initially received the higher pay, but that she stopped receiving the higher-level on May 19,
2014.

Complainant claimed that on numerous occasions, management assigned her to work on
machines with higher volume to get her to work harder. Complainant contended that it was not
fair to constantly put her on machines that were problematic because other employees could not
carry their weight.

On May 26, 2014, Complainant claimed that she and others were going to be done with their
work early. Complainant alleged that she was told by the acting supervisor that the Lead
Distribution Operations Manager (M1) said she should clock out and not finish her machine
because someone else would finish it. Complainant claimed that the next day was supposed to
be her day off, but she was made to come in.

On July 1, 2014, Complainant alleged that when she arrived she saw a note on the machine
instructing employees to turn at 1:30 and to split lunches because people from the prior night did
not get the mail out. Complainant stated that she questioned why they were being penalized and
said the mail might be late because they were asking her to operate differently. Complainant
claimed that management told them they would be written up if the mail was late.

On July 1, 2014, Complainant alleged that she was at the time clock to clock out for lunch when
she was told by her supervisor (S1) to end her tour and go home. Complainant claimed that
when M1 came by, she told him that she had not had a break, but he responded that she had one
earlier. Complainant alleged that management told them that they had to go home because they
did not split their lunches as they had been instructed.

On July 2, 2014, Complainant alleged that her machine went down and she went to break.
Complainant claimed that S1 tried to send her to another machine when she returned from break.
Complainant continued to sort rejected and torn mail and her machine was back up by the time
she finished manually sorting the mail. Complainant claimed that S1 stood in her way and asked
if there was a reason she did not move when he gave her an instruction. Complainant felt that S1
was disrespectful and talked to her like a child. On July 4, 2014, Complainant alleged that S1
gave her a pre-disciplinary interview regarding her failure to split lunches on July 1, 2014.

On July 8, 2014, Complainant claimed that she was hand-delivered a letter from M1 regarding
her pregnancy. The letter stated that Complainant had indicated that her pregnancy was
considered “high-risk” and that she needed to submit a letter from her physician indicating that
she could perform the duties of her position before she could return to work. The letter included
the physical requirements of Complainant’s position. Complainant alleged that she submitted
Family Medical Leave Act (FMLA) paperwork completed by her doctor, but M1 still required
that she submit a medical clearance form signed by her doctor.

On October 21, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of sex
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(female) and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, she was told not to return to work until she submitted a medical clearance
letter for her “high risk” pregnancy; she was made to work on machines with higher volume to
make her work harder; her supervisor threatened to write her up when she requested to see a
union steward; she was appointed Lead Clerk but never received training and her higher-level
pay for the position was taken away; her supervisor threatened to write her up and sent her home
early; she was sent home early and did not receive lunch or break; her supervisor reprimanded
her; and she was given a pre-disciplinary interview.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency concluded that
Complainant failed to show that management’s actions were motivated by discriminatory or
retaliatory animus. Specifically, with regard to management’s request for a medical clearance
letter, M1 affirmed that Complainant made comments to several employees and management
officials that she was experiencing a high-risk pregnancy. Additionally, Complainant had made
comments to other employees that she would sue the Agency if anything happened to her. M1
asserted that when Complainant submitted her FMLA paperwork, it did not indicate any
restrictions regarding her job duties. Based on this information, management issued
Complainant a letter outlining her duties and asking her physician to clear her to return to duty.

As to her assignment on higher-volume machines, Complainant’s supervisor, S1, stated that the
machine assignments were not based on volume; rather, assignments were made based on
seniority and the availability of a machine. S1 stated that the rotation and schedules were made
the prior night and they did not have prior knowledge of the mail arriving in the unit. S1
explained that they had 24 machines and 69 clerks in Automation, and they rotated nightly to
cover non-scheduled days. With respect to her claim that she was threatened with a write-up
when she requested to speak with a union steward, no management official could recall the
incident occurred.

Regarding her Lead Clerk claim, M1 explained that Complainant volunteered to be a Lead Clerk.
Complainant was a Level 6 PSE Clerk, and shortly after she was appointed to the position, he
became aware that PSE Clerks could not receive higher-level pay. As to being sent home early,
S1 affirmed that on May 26, 2014, Complainant failed to follow instructions after she was told to

2 The Agency dismissed several additional claims for untimely EEO counselor contact.
Complainant did not specifically challenge the dismissal of these claims on appeal. Nonetheless,
the Commission will consider these claims as background evidence in support of Complainant’s
overall hostile work environment claim.
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rotate her lunch so that they could keep the machines running. S1 asserted that Complainant
became argumentative when asked about it, and M1 asked her to clock out and go home. M1
noted that PSE clerks were only guaranteed two hours of work. As to the July 1, 2014 claim, M1
stated and record documentation confirmed that Complainant was not sent home early; rather,
she worked approximately eight hours and took a lunch break.

With respect to Complainant’s claim that she was reprimanded, S1 and M1 denied reprimanding
Complainant on July 2, 2014. Additionally, the Agency determined there was no evidence of
discriminatory or retaliatory animus regarding Complainant’s pre-disciplinary interview claim.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, 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 other pregnant clerks were not required to submit medical
clearance forms and that management did so to harass her. Complainant argues that she did not
tell management that she was experiencing a high-risk pregnancy and that even if someone else
said it, it was hearsay. Complainant claims that PSE clerks get treated differently than regular
clerks. Complainant contends that management officials gave contradictory statements
explaining their actions. Complainant disputes that she was sent home for not following
instructions and that she worked without getting a lunch break on one occasion. Accordingly,
Complainant requests that the Commission reverse the FAD. The Agency submitted a statement
in opposition to Complainant’s appeal in which it urged the Commission to affirm the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

The Commission notes that claims brought under the Pregnancy Discrimination Act (PDA) are
examined using traditional disparate treatment analysis. Bernardi v. U.S. Postal Serv., EEOC
Appeal No. 01954090 (Aug. 21, 1997). In the absence of direct evidence of discrimination, the
allocation of burdens and order of presentation of proof in adjudicating Complainant's pregnancy
discrimination claim is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
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that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to her claim that she was told she
could not return to work until she provided a clearance letter, M1 explained that he requested
that Complainant submit documentation indicating that she could return to work after learning
that Complainant had made comments to several employees that her pregnancy was considered
high-risk and that she would sue the Agency if anything happened to her. ROI, at 276. S1 noted
that Complainant’s sister informed management that Complainant’s pregnancy was high-risk
while Complainant was in their presence. Id. at 159. In the letter, M1 noted the physical
requirements of Complainant’s position and asked that Complainant’s doctor indicate her ability
to perform those duties. Id. at 302. M1 acknowledged that Complainant had submitted FMLA
paperwork regarding her pregnancy; however, that documentation was insufficient as it did not
indicate Complainant’s restrictions. Id. at 276.

Regarding her claim that she was unfairly assigned higher-volume machines, S1 affirmed that
the rotation and schedule were usually made the night before and management does not have
prior knowledge of the volume of mail arriving in the unit. ROI, at 163. S1 added that the
schedule was made according to seniority and machine availability and no one received special
treatment. Id. S1 noted that management rotates employees on a nightly basis and the machines
do not have a permanent crew assigned to them. Id. With respect to her claim that management
requested to write her up for requesting a union steward, management officials denied doing so
and there is no evidence that she was written up. Id. at 167 and 225.

As to her claim regarding Lead Clerk duties, M1 affirmed that Complainant was appointed Lead
Clerk after she volunteered. ROI, at 232. M1 stated that shortly after her appointment, he
became aware that PSE clerks could not receive the Level 7 higher-level pay pursuant to Agency
policies. Id. at 232. M1 was unsure of the level of training Complainant received. Id.
Regarding being sent home early on May 26, 2014, and threatened with a write-up, S1 stated that
Complainant was told to rotate her lunch so that they could keep the machine running. Id. at
178. When Complainant did not follow his instructions and became argumentative, M1 told her
to clock out and go home. Id. M1 noted that PSEs are only guaranteed two hours when they are
scheduled to work. Id. at 237. As to her claim that she was sent home early on July 1, 2014, and
not granted a lunch or break, the record indicates that Complainant worked approximately eight
hours and took a lunch break. Id. at 311. Regarding being reprimanded or scolded, S1 denied
Complainant’s claim that he was disrespectful to Complainant or blocked her path. Id. at 212.
Finally, with respect to the July 4, 2014 pre-disciplinary interview, S1 stated that he held one
with Complainant following her failure to follow his instructions to go to lunch from a few days
prior. Id. at 203. There is no evidence that Complainant received any discipline.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
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1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

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. The Commission finds no persuasive evidence that
Complainant’s protected classes were a factor in any of the Agency’s actions. At all times, the
ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence
that the Agency's reasons were not the real reasons and that discriminatory or retaliatory animus
was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission
finds that Complainant has not established that she was subjected to discrimination or reprisal as
alleged.

Hostile Work Environment

To establish a claim of harassment a 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 class; (4) the harassment affected a term 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 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, 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 protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant asserted that based on her protected classes, she was subjected to a hostile
work environment based on several incidents where Agency officials took actions that seemed
adverse or disruptive to her. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish a hostile work environment. The Commission has
consistently held that the discrimination statutes are not civility codes. Petty slights, minor
annoyances, and simple lack of good manners occur in the workplace. Not every unpleasant or
undesirable act constitutes a discrimination violation. See Shealey v. Equal Emp’t Opportunity
Comm’n, EEOC Appeal No. 0120070356 (Apr. 18. 2011) (citing Epps v. Dep't of Transp.,
EEOC Appeal No. 0120093688 (Dec. 19. 2009). What the discrimination statutes forbid is
behavior so objectively offensive that it alters the conditions of a complainant’s employment.
Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 31 (1998).

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Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or retaliatory
animus played a role in any of the Agency’s actions. The record reflects that the alleged
incidents were more likely the result of routine supervision and general workplace disputes and
tribulations. The Commission finds that Complainant has not shown that she was subjected to a
hostile work environment. As a result, the Commission finds that Complainant was not
subjected to discrimination, reprisal, or a hostile work environment as alleged.

Clearance to Return to Work Letter

The Commission notes that the Rehabilitation Act places certain limitations on an employer’s
ability to make disability-related inquiries or require medical examinations of employees. The
inquiry may be made or the examination ordered only if it is job-related and consistent with
business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the employer
must have a reasonable belief based on objective evidence that an employee will be unable to
perform the essential functions of his or her job or poses a direct threat because of a medical
condition. EEOC Enforcement Guidance on Disability-Related Inquiries, Notice No. 915.002
(July 27, 2000), at Q.5. Objective evidence is reliable information, either directly observed or
provided by a credible third party, that an employee may have or has a medical condition that
will interfere with her ability to perform essential job functions or will result in direct threat. Id.
It is the burden of the employer to show that its disability-related inquiries and requests for
medical examination are job-related and consistent with business necessity. See Cerge v. U.S.
Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9, 2007).

The Commission finds that Agency management had a reasonable belief that Complainant could
not perform the essential functions of her position safely because of a medical condition.
Management officials confirmed that numerous employees and other managers reported to them
that Complainant had indicated that her pregnancy was considered high-risk. ROI, at 277.
Additionally, S1 affirmed that Complainant’s sister informed management that Complainant’s
pregnancy was high-risk when Complainant was present. Id. at 159. Further, management
learned that Complainant had stated that if anything happened to her or she lost her baby, she
would sue the Agency. Id. at 159, 218. A management official spoke with Complainant about
the inappropriateness of that comment. Id. at 303. Based on reports management had received
from employees and Complainant’s sister’s comments in Complainant’s presence, M1 requested
that Complainant’s doctor provide information about whether Complainant could perform the
duties of her position. Id. at 302-03. M1 noted that Complainant’s FMLA documentation was
insufficient at the time because it did not provide any information about her restrictions at the
time. Id. at 276.

Based on the record evidence and the specific circumstances present, the Commission concludes
that the Agency ordered Complainant to submit medical documentation clearing her return to
work on the basis of objective evidence, that is, Complainant’s sister’s comments and employee
reports. Thus, the Commission finds that the Agency’s medical inquiry was job-related and
consistent with business necessity and did not violate the Rehabilitation Act.
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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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.
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

September 15, 2017
Date