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

Equal Employment Opportunity Commission

Nov 13, 2019

0120182805 (E.E.O.C. Nov. 13, 2019)

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

Shaunda D.,1
Complainant,

v.

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

Appeal No. 0120182805

Agency No. 4E840000418

DECISION

On August 10, 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
June 29, 2018 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full Time City
Carrier, Level 1, at the Agency’s Salt Lake Downtown Station in Salt Lake City, Utah.

On December 12, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female), disability (ankle and wrist), and in reprisal
for prior protected EEO activity when:

1. on October 2, 2017, she was issued a Letter of Warning for Unacceptable Conduct;

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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2. on October 19, 2017, she was issued a Letter of Warning for Unacceptable Conduct;

3. on several occasions including October 26, 2017, the Station Manager has cornered her
in her case, entered her personal space and physically intimidated her even to the extent
of causing her bruising;

4. on November 2, 2017, she was issued a 7-Day Suspension; and

5. on a daily occurrence, her supervisor constantly follows her, has followed her into the
restroom, and her manager has refused to investigate her complaints.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 request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), 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 or reprisal as alleged.

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, 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 - Claims 1, 2, and 4 (Letters of Warning and Suspension)

To prevail on disparate treatment claims such as these, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See 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).

2 The Agency dismissed an additional claim pursuant to 29 C.F.R. §1614.107(a)(8) as a spin-off
complaint. Complainant raised no challenges to the dismissal of this claim on appeal; therefore,
the Commission will not address it herein.
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To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy,
EEOC Request No, 05950351 (Dec. 14, 1995).

According to the Agency, Complainant received the first Letter of Warning principally because
she abandoned a Postal Inspector by the roadside midway into a route inspection the Postal
Inspector was conducting on Complainant when he dismounted Complainant’s vehicle to make a
telephone call. She was also cited for having “made vulgar comments” to the Inspector during the
course of the inspection. ROI at 634. In explanation for the issuance of the second Letter of
Warning, the Agency states that Complainant defied instructions to return to the office at a
specified time, returning instead at a different time. ROI at 639. With respect to the suspension,
the Agency explains that Complainant again defied supervisor’s directions refusing to follow
instructions to return to her case and case her mail as well as raising her voice and acting in a
threatening manner toward supervisors. ROI at 408, 645, 742. These are legitimate,
nondiscriminatory reasons for the Agency’s actions.

Complainant disputes the charges against her generally but provides no specific evidence that
would support a finding that the Agency’s reasons are untrue. For example, she states that, in
explaining the issuance of the first Letter of Warning, “[m]anagement used a falsified statement.”
ROI at 137. With respect to the second Letter of Warning she avers simply that “I was following
my supervisor’s instruction.” ROI at 143. When asked how she responded to the Agency’s reason
for issuing the suspension she gave no direct response, stating simply “none provided.” ROI at
151.3

As Complainant did not request a hearing, 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 the
Agency acted on the basis of discriminatory or retaliatory animus. 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

It is well-settled that harassment based on an individual's statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).

3 This response is plainly false since the notice of suspension issued to Complainant stated the
specific reason the suspension was being issued. ROI at 742.
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In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the
statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome
conduct related to her membership in those classes or her prior EEO activity; (3) the harassment
complained of was based on those classes or that activity; (4) the harassment had the purpose or
effect of unreasonably interfering with her work performance 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).

In addition to the above incidents, Complainant alleges that she was subjected to harassment when
a supervisor entered her personal space and caused “bruising” and that another (female) supervisor
“constantly” followed her, including into the restroom. The supervisors accused of these harassing
actions flatly deny them. ROI at 624, 644. Complainant has adduced some witness statements
that generally support her allegations of aggressive management behavior but are insufficiently
specific to overcome the denials of the supervisors involved.

Even assuming that these two incidents occurred as alleged and constitute conduct sufficiently
severe or pervasive to establish a hostile work environment, Complainant must also prove that the
allegedly harassing conduct was undertaken because of a protected basis - in this case because of
her sex, disability, or in reprisal for prior protected activity. While the management officials’
actions toward Complainant may have been unprofessional, there is no evidence that the alleged
conduct was based on her protected classes. We find that Complainant has not proven, by a
preponderance of the evidence, that these incidents of alleged harassment occurred as alleged or
were motivated by her race, disability or prior protected activity. Accordingly, the Commission
concludes that Complainant was not subjected to discrimination, reprisal, or a hostile work
environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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.
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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.

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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

November 13, 2019
Date