Soila R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Oct 10, 2019

0120182552 (E.E.O.C. Oct. 10, 2019)

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

Soila R.,1
Complainant,

v.

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

Appeal No. 0120182552

Hearing No. 461-2018-00033X

Agency No. 4G-770-0068-17

DECISION

On July 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
June 28, 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 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.

ISSUE PRESENTED

The issue presented herein is whether Complainant established that she was subjected to
unlawful discrimination and retaliatory harassment as alleged in her formal complaint.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s River Oaks Station in Houston, Texas.

On March 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her:

1. On the bases of national origin (Hispanic), sex (female), and age (55) when:

a. Beginning on December 15, 2016, Complainant was the only employee given
the instructions to remain at a carrier case and not to touch Delivery Point
Sequence (DPS) mail.
b. During the month of December 2016, Complainant was not allowed to report
to work early.

2. In reprisal for prior protected EEO activity under Title VII and the Age
Discrimination in Employment Act when:

a. Beginning on or about March 2, 2017, her manager continues to follow her on
the street conducting street observations.
b. Beginning on or about March 2, 2017, management continued to deny her PS
Form 3996s.
c. Beginning on or about March 2, 2017, her requests for Leave Without Pay
(LWOP) under the Family Medical Leave Act (FMLA) were changed to sick
leave or annual leave.

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 EEOC
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.

CONTENTIONS ON APPEAL

Complainant filed the instant appeal without specific comment.

The Agency responded to Complainant’s appeal. The Agency asserted that its final decision was
appropriate. The Agency argued that Complainant failed to provide sufficient evidence to
establish her prima facie case of disparate treatment, unlawful retaliation, or hostile work
environment. Further, the Agency stated that Complainant provided nothing to support her
allegations of discrimination beyond her belief that the actions occurred because she is a
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Hispanic female over the age of 40. Therefore, the Agency urged the Commission to affirm its
final decision.

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 (EEO MD-110), 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 – Claim 1

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

In claim 1, Complainant alleged that the Agency subjected her to disparate treatment based on
her national origin, sex, and age when she was given an instruction to remain at her case and not
to touch her DPS mail and when she was not allowed to report to work early in the month of
December 2016. As to the instruction, Complainant’s supervisor (Supervisor) averred that on
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one occasion, she gave Complainant the instruction to stay in her case because within a span of
an hour, Complainant would get very little of her mail cased. She indicated that Complainant
would be constantly walking away from her case. As such, the Supervisor ordered her to stay at
her case. Further, she also noted that carriers are not supposed to touch their DPS until their
routes are cased up and taken down to deliver. She noted that DPS is a street function and
should not be done on office time. Therefore, again, the Supervisor indicated that Complainant
did not get her mail cased during office time and should not touch the DPS until she was ready to
deliver. As for Complainant’s request to report early, the Supervisor stated that carriers could
come in early if they are on the overtime list. She noted that she did not recall Complainant
asking to come in early because that is not the process for coming in early. The Supervisor
averred that if a carrier needed to adjust their schedule in any way, they would have to fill out a
form and have a union official sign it. As Complainant did not make such a request and was not
on the Overtime list, she would not have been able to report early. The Manager supported the
Supervisor’s testimony, stating that Complainant did not make a request to arrive at work early.
She also indicated that Complainant had made management aware that she could only work eight
hours per day.

Based on the record, we find that the Agency provided legitimate, nondiscriminatory reasons for
its actions. We turn to Complainant to establish that the Agency’s reasons were pretext for
discrimination. However, we find that Complainant has failed to do so. Accordingly, we
conclude that Complainant failed to show that she was subjected to disparate treatment based on
her national origin, sex, or age.

Retaliatory Harassment – Claim 2

It is well-settled that harassment based on an individual’s protected EEO activity is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment under those bases, the complainant must show that: (1) she engaged in prior EEO
activity; (2) she was subjected to unwelcome conduct related to her prior EEO activity; (3) the
harassment complained of was based on prior EEO 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). The harasser’s conduct
should be evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002
(March 8, 1994).

Complainant asserted that based on the instant EEO matter, she was subjected to retaliatory
harassment. In support of her claim, she alleged that the Supervisor followed her on the street
conducting street observations; she was denied her PS Form 3996s; and she was charged sick
and annual leave when she had requested FMLA LWOP. As to the street observations, the
record indicated that the Supervisor did not conduct observations on Complainant. Instead, the
record demonstrated that another supervisor (Acting Supervisor) conducted an observation and
that it occurred only once. Complainant indicated that she was denied her requests for auxiliary
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help which she requested by using the PS Form 3996. She noted that her route has high volume
and needed assistance. As for the 3996 forms, the Manager averred that Complainant submits
them every day and that they are approved or denied based on the mail volume for each
particular day. According to a review of the Form 3996s provided in the record for after June 1,
2017, it appears that most of the requests were approved for those carriers that made requests,
including Complainant and her coworkers. Finally, as to Complainant’s claim that she was
denied FMLA leave,2 she alleged that the Agency charged her with leave instead of providing
her LWOP. The Supervisor averred that that even under FMLA, Complainant still needed to be
charged with leave in order to be paid.

Upon review of the events alleged by Complainant in support of her claim of retaliatory
harassment, we find that Complainant has not shown that the alleged events occurred because of
protected EEO activity. Furthermore, taking the events as a whole, we cannot find that the
alleged incidents were severe or pervasive enough to create a hostile work environment.
Therefore, we conclude that Complainant has not established a prima facie case of retaliatory
harassment.

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 finding that Complainant
did not establish that she was 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.

2We note that, to the extent Complainant claim alleges a violation of FMLA, we find that such a
claim constitutes a collateral attack and is dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). The
Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. The proper forum for Complainant to challenge the
Agency’s application of FMLA is with the Department of Labor, not the EEOC.
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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. Such requests do not alter
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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

October 10, 2019
Date