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

Equal Employment Opportunity Commission

Feb 23, 2017

0120141869 (E.E.O.C. Feb. 23, 2017)

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

Candance C.,1
Complainant,

v.

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

Appeal No. 0120141869

Hearing No. 480-2012-00227X

Agency No. 4E-890-0052-11

DECISION

On April 18, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s March 20, 2014, notice of final action 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 notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as Sales,
Services/Distribution Associate at the Pahrump Post Office in Pahrump, Nevada.

On July 20, 2011, Complainant filed an EEO complaint alleging that she was subjected to a
hostile work environment based on her age (57) and in reprisal for prior protected EEO
activity when:

1. In 2010, she was denied overtime;

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.
0120141869

2
2. On unstated dates she was overly scrutinized;
3. On unstated dates Supervisor 1 (S1) took her out of her bid and made her work
window duties;
4. On unstated dates she was subjected to whispering by managers and coworkers;
5. On an unstated date she was told by coworker 1 she was old and should retire;
6. On an unstated date her comments in a climate survey were not included;
7. Around November 2010, she was told by Person Y to retire and get a hobby;
8. On an unstated date coworker 1 showed S1 her belly rings;
9. On unstated dates coworker 4 sold tacos and brought supervisors food;
10. On May 10, 2011, she was issued a letter of warning by S1 that was reduced to
a discussion on June 9, 2011; and
11. On June 14, 2011, she was sent nine leave slips by S1 to cover a 30-day
absence.

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). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing. The AJ issued a decision without a hearing on March 7, 2014.

In his decision, the AJ noted that the parties had 90 days to engage in discovery as set forth in
the EEOC’s January 25, 2012 Acknowledgment and Order. The AJ noted Complainant had no
pending Motion to Compel. The AJ determined Complainant had been allowed the opportunity
to complete discovery in order to respond to the Agency’s motion for a decision without a
hearing.

Additionally, the AJ noted that on August 7, 2013, the Agency filed a Motion to Disqualify
Complainant’s Representative. The AJ stated that in light of his decision, the Agency’s
Motion was moot and would not be ruled upon or addressed.

The AJ determined that issue (1) constituted a discrete act. The AJ found that “To the extent
the theory is that this issue is part of a harassment case, the theory is misplaced as untimely
discrete issues cannot be part of a timely harassment claim.” Thus, the AJ dismissed issue (1)
as untimely.

The AJ also concluded that issues (4), (6), (9), and (11), did not result in an injury-in-fact.
The AJ found such actions, resulting in no injury or an action insufficient to dissuade a
reasonable person from engaging in EEO activity, fail to state a reprisal or age claim. Thus,
the AJ dismissed these issues. The AJ also noted that there was insufficient evidence in the
record to demonstrate these actions were connected to Complainant’s age.

The AJ proceeded to analyze Complainant’s hostile work environment claim. The AJ found
the record did not have sufficient evidence showing Complainant was treated with the
discriminatory animus for an age or reprisal hostile work environment claim. The AJ noted
0120141869

3
the record did not contain sufficient evidence that any comparative employees outside of
Complainant’s protected classes were treated better than she was under similar circumstances.
The AJ noted that while Complainant asserted that Coworker 1, Coworker 2, Coworker 3, and
Coworker 4 were assigned more favored duties and/or assigned Complainant’s work bid
duties, the record offers insufficient facts to support these contentions for they all held the
same bid positions. Additionally, the AJ noted that to the extent Complainant was instructed to
perform window or box duties, such duties were specifically listed within Complainant’s job
description. Thus, the AJ found Complainant’s argument that she was told to perform duties
not in her bid was not supported by the record and insufficient to establish reprisal or age
discrimination.

With respect to all issues, excluding the retirement comments, the AJ determined there was not
sufficient evidence to show such actions were motivated by age or reprisal against
Complainant. The AJ stated the only remaining incidents to prove age or reprisal were the two
alleged retirement comments made to Complainant by her coworkers. The AJ noted the
retirement comments could be viewed as based on age but not animus arising from reprisal.
The AJ stated even assuming the two retirement comments were age motivated, the comments
were insufficient to establish a pervasive or severe atmosphere to show a hostile work
environment. Regarding the reprisal basis, the AJ found there were no incidents linking the
alleged actions to reprisal and also noted there was insufficient evidence to demonstrate the
pervasive or severe element to constitute a hostile work environment due to reprisal.

Additionally, the AJ found Complainant’s claim was further undermined because the alleged
discriminating officials were not aware of Complainant’s protected groups. The AJ noted that
S1 and the Postmaster were unaware of Complainant’s EEO activity until July 2011, while
Person Y had no knowledge of Complainant’s age or EEO activity until a request to complete
an affidavit in this complaint in October 2011. Also, the AJ noted the Agency articulated
nondiscriminatory reasons for their actions. The AJ noted Complainant’s own statement that
favored treatment was because the Agency operated its business like a high school clique, was
not sufficient to show reprisal or age discrimination.

Finally, the AJ noted that Complainant appears to claim sex harassment arising from a
coworker showing S1 her belly ring at an unstated time. The AJ found this incident shows a
coworker’s poor judgment but not sex harassment. The AJ determined the sex harassment
claim was undermined as there were no facts showing the alleged sexual conduct was
widespread or that the Agency supervisor encouraged or required such conduct in order for an
employee to gain favoritism.

The Agency subsequently issued a notice of final action on March 20, 2014. The Agency’s
notice of final action fully implemented the AJ’s finding that Complainant failed to prove that
the Agency subjected her to discrimination as alleged.

0120141869

4
On appeal, Complainant submits a May 8, 2014 brief signed by herself and Representative 1.
Complainant claims the timing of the AJ’s decision in her case appears to be retaliatory as the
decision was issued one day after Representative 1 was removed as her representative in
another case. Complainant claims the temporal proximity alone provides evidence of
retaliation. Complainant requests a fair hearing on her case by an unbiased AJ.

Complainant argues there were material facts in dispute which she outlined in her opposition to
the Agency’s Motion for a Decision Without a Hearing. For example, Complainant claims
that she reported discrimination on October 19, 2010, November 2, 2010, and December
2010, and cites Affidavit H in support of her position.

Also, regarding issue (3), Complainant claims the AJ’s decision is based on the material fact
that the comparative clerks hold the same bid position. However, Complainant cites the
affidavit of Representative 1 and Coworker 5 as disputing this fact. Complainant avers that
some clerks had distribution bids and other clerks had window bids. Complainant states her
affidavit and deposition showed they did not all have the same bids.

Complainant also argues the constant whispering is evidence in dispute. Complainant cites her
deposition and the affidavit of Representative 1 in support of her position that constant
whispering occurred.

In addition, Complainant states that sexual harassment is in dispute. Complainant also argues
that missing discovery was critical to her claim but was never addressed by the AJ.
Complainant notes the denial of overtime claim was an ongoing weekly issue and not a discrete
act as cited by the AJ. Complainant states her reprisal claim was not even addressed in the
AJ’s decision. Complainant also alleges that older CSRS employees were targeted and that age
discrimination based on civil service status is blatant. Finally, Complainant requests that she
be allowed to have the representative of her choice continue to represent her. Complainant
claims it is illegal and against public policy and the EEOC’s regulations for the Agency to “pay
off” representatives.2

In response to Complainant’s appeal, the Agency notes at the time the AJ granted summary
judgment, there was an outstanding Agency motion to exclude Representative 1 as
Complainant’s representative because Representative 1 had previously entered into a settlement
agreement wherein she agreed, among other things, not to represent other employees in the
future and received consideration in return for this agreement. Since Representative 1 appears
on Complainant’s behalf in this appeal, the Agency renews its motion and requests the
Commission disqualify Representative 1 as Complainant’s representative.

2 Complainant also submitted a July 1, 2014 brief signed only by her and not by Representative
1. We note this brief was filed beyond the applicable limitations period. Complainant failed to
present adequate justification for the late filing. Thus, we decline to consider Complainant’s
July 1, 2014 brief.
0120141869

5

The Agency responded to Complainant’s claim that “the missing discovery that was critical to
the claim was never even addressed.” The Agency noted there were no outstanding discovery
issues in this case when the motion for summary judgment was filed, or when it was granted.
The Agency pointed out that Complainant never once notified the Agency that it considered its
discovery responses in any way inadequate or that she otherwise believed critical documents
were being withheld in this case.

The Agency claims Complainant failed to establish any genuine issue of material fact. The
Agency notes that Complainant claims she engaged in protected activity on October 19, 2010,
and again in December 2010. The Agency states that in making this assertion, Complainant
ignores her own testimony that the retaliation started after she provided an affidavit for another
employee’s EEO case in March 2011. Rather, the Agency notes Complainant relies on the
EEO affidavit of Representative 1 who attached several documents concerning the
representative’s own claims to Complainant’s affidavit. The Agency notes that the appeal brief
references pages 16 and 22 of Representative 1’s affidavit (Affidavit H) in support of
Complainant’s claimed oppositional activity on October 19, 2010. The Agency notes page 16
is the first page of a multi-page letter from Representative 1 to several high ranking postal
managers, but excluding Pahrump management. The Agency notes that in that letter,
Representative 1 contends that she (Representative 1) has experienced a hostile work
environment/discrimination at Pahrump. The Agency states Complainant is not mentioned in
the letter, let alone that Complainant was engaging in protected activity through the letter.
Moreover, the Agency noted there is no evidence Pahrump management was aware of the
letter when it was written since it was not directed to them.

In addition, the Agency notes that page 22 of Representative 1’s affidavit is another letter
written by Representative 1 that is not dated and does not mention Complainant or complaints
by Complainant; rather it appears to mainly advance a claim of sexual harassment against S1,
which is not relevant to the present case.

The Agency argues that if there is a dispute, it is only between Complainant and
Representative 1; and to resolve the dispute it is reasonable to credit the testimony of
Complainant. The Agency states that consistent with Complainant’s sworn affidavit, she first
engaged in protected activity starting in March 2011.

The Agency notes Complainant also takes issue with the AJ’s conclusion that the bids were the
same in the office. Complainant notes that some clerks had distribution bids and other clerks
had window bids. The Agency states contrary to Complainant’s unsupported statement, S1
stated that all clerks at the Pahrump Post Office have the same title as a Sales, Services
Associate (SSA) or Window and Distribution Clerk. S1 stated all clerks work the
window/retail and have it on their bid assignments. S1 noted that all bid assignments also have
“other duties as assigned,” which means management can work the clerks in all duties for the
needs of the operation. The Agency states this is further validated by the bid notice
Complainant bid in January 2011. The Agency notes the bid is described as
0120141869

6
“Window/Distribution Clerk” and the main office duties were “box mail, window/window
relief, collections, answer phones, 2nd notices, distribution, UBBM and other duties as
assigned.” The Agency states the evidence supports the AJ’s conclusion over Complainant’s
bald assertion.

The Agency notes Complainant alleged on unspecified dates she was subjected to constant
whispering by managers and coworkers. The Agency notes management denied constant
whispering. The Agency notes that coworker 1 also denied being aware of constant
whispering. The Agency conceded there are different opinions on the subject. However, the
Agency states the AJ properly considered these facts in a light most favorable to Complainant,
but still he found issue (4), “whispering” in the office, did not result in an injury in fact.

The Agency states assuming, as Complainant argues there is a dispute as to whether there was
“sexual harassment,” that is a legal conclusion and not a “fact.” The Agency states the factual
statements set forth by the Agency have not been disputed by Complainant. Regardless, the
Agency claims there is no claim of sexual harassment pending before the Commission.

With regard to Complainant’s claim of retaliation, the Agency notes Complainant herself stated
that her protected activity was in March 2011, and on appeal the argument was made that it
occurred in October 2010. The Agency notes that Complainant’s allegations of unfair and
harsh treatment span the entire time she was employed at Pahrump. The Agency noted that
Complainant stated that “[S1] has been playing games with me since I arrived at the Pahrump
Post Office about 5 years ago,” and “[S1] constantly played games with scheduling, start
times, duties and overtime.” The Agency noted that Complainant stated “Around September
2010 things went from bad to extremely worse with the arrival of [the Postmaster],” and
explained that “[t]he preferential treatment increased with regard to overtime, duties and early
starts.” The Agency notes that Complainant stated that the unfair overtime started in
November 2009, and that 2009 is also when she began to be assigned the “worst” duties in the
office. The Agency argues there is no basis on which a reasonable fact-finder could conclude
that same activity was motivated by EEO activity happening a year or more after the alleged
retaliatory activity started.

With regard to age discrimination, the Agency notes the AJ concluded that even in light of the
two alleged age-based comments (one by an investigator from outside the Pahrump Office and
one by a coworker) there was a deficit of evidence suggesting age-based bias. The Agency
also addresses Complainant’s claim of a hostile work environment. The Agency states that
because Complainant cannot show that she was singled out due to age-based animus or to
retaliate against her for activities in opposition to discrimination, the claim that she suffered
discriminatory hostile work environment must also fail.

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
0120141869

7
C.F.R.§ 1614.405(a). See EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 9, 1999) (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”).

At the outset, we address the Agency’s contention that Representative 1 should be excluded
from representing Complainant. The record reveals that Representative 1 entered into a
settlement agreement in December 2008, to resolve Representative 1’s pending civil actions
and EEO complaint. The agreement required Representative 1 to no longer serve as a
representative to any complainants in the future.3 Complainant, however, designated
Representative 1 as her representative at some time after November 3, 2011. On August 7,
2013, the Agency filed a Motion to Disqualify Complainant’s Representative. The AJ did not
rule on this motion prior to issuing his decision finding no discrimination.

Upon review, we find it is undisputed that Representative 1 entered into a settlement agreement
in which she agreed not to represent EEO complainants. Complainant presented no evidence
that Representative 1 has obtained an order or decision, either by the Commission or a Federal
District Court, determining the settlement agreement unenforceable. Allowing Representative
1’s continued representation in this case would facilitate a breach of contract. Thus, we grant
the Agency’s request to exclude Representative 1 as Complainant’s representative. However,
we find the exclusion of Representative 1 does not affect the processing of Complainant’s
current appeal for the following reasons. First, we note that Complainant timely filed her
appeal on her own behalf. Second, we recognize that both Complainant and Representative 1
signed Complainant’s May 8, 2014 appeal brief. Thus, even though Representative 1 is
excluded as Complainant’s representative, we will consider Complainant’s May 8, 2014 brief
in the course of issuing this decision.

Next, we address the AJ’s dismissal of several issues from Complainant’s complaint on
procedural grounds. We find the AJ properly dismissed issue (1) for untimely EEO Counselor
contact as a discrete act. Specifically, we note the alleged denial of overtime occurred
throughout 2010; however, Complainant did not initiate EEO Counselor contact until June 14,
2011, which was beyond the applicable limitations period. As the Commission recognized in
Complainant v. Department of Army, EEOC Request No. 0520120488 (May 17, 2013):

even if the discrete acts that are part of this hostile work environment claim are not
independently actionable because they were not timely raised, the only consequence is
that the complainant cannot be entitled to relief for the discrete acts themselves. But
those discrete acts are still part of the timely raised hostile work environment claim and

3 Representative 1 was permitted to complete representation of four named individuals through
their final decisions.
0120141869

8
can be considered in determining whether the harassment was sufficiently severe or
pervasive and the appropriate remedy for the hostile work environment.

Thus, we consider issue (1) as part of Complainant’s hostile work environment claim (although
she is not entitled to relief for the denial of overtime).

We note the AJ dismissed issues (4), (6), (9), and (11) for failure to state a claim. However,
we note that Complainant framed her complaint as an overall claim of harassment. By
dismissing the above mentioned four issues, the AJ improperly fragmented Complainant’s
claim of harassment. Thus, we will consider the dismissed issues (4), (6), (9), and (11) in this
decision.

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed, there is no
evidence of bias by the AJ, and there are no disputes of material fact. While Complainant
argued on appeal that there was missing discovery, we note the record reveals that the parties
had 90 days to engage in discovery as set forth in the EEOC’s January 25, 2012
Acknowledgment and Order. Additionally, the record reveals that Complainant had no
pending Motion to Compel at the time the Agency’s Motion for Summary Judgment was filed
or granted.

With regard to issues (1) – (3), we note Complainant alleged that she was denied overtime in
2010, she was overly scrutinized, and she was made to work out of her bid and made to work
window duties. Even assuming Complainant established protected activity as early as
September 2010, we note that Complainant’s allegations of unfair treatment span the entire
length of time that she worked at the Pharump Post Office. Complainant noted that the unfair
overtime and scrutiny started in November 2009, and also stated that since 2009 she has been
getting the worst duties and starting times. Complainant also stated that S1 “has been playing
games with me since I arrived at the Pahrump Post Office about 5 years ago,” and “S2
constantly played games with scheduling, start times, duties.” Complainant alleged that in
September 2010, “things went from bad to extremely worse” with the arrival of the new
Postmaster. Complainant claimed the preferential treatment increased with regard to overtime,
duties, and early starts once the new Postmaster arrived. Upon view, we find Complainant
failed to establish that she was singled out for harsh treatment with regard to overtime,
scrutiny, or duty assignments because of her protected activity or age.

With regard to issue (6), Complainant claimed that in November 2010, her comments for the
climate survey were not included in the report. Complainant noted the team that conducted the
climate survey would not allow open comments and asked specific questions. Complainant
stated that the Postmaster was provided the responses to the survey. Complainant identified
the comments that were not included were that she explained the favoritism, S1’s scheduling of
duties, and the issues regarding overtime not being done properly. Complainant stated she
knew her comments were not included because the report said everyone was happy and that
one person was the problem. Complainant claimed her comments were not included because
0120141869

9
of her age because she was told to retire by Person Y. Complainant claimed the action was
because of her EEO activity since management knew she prepared an EEO affidavit on March
12, 2011.

In her affidavit the Postmaster stated that there were numerous complaints of discrimination,
favoritism, and a hostile work environment so she requested the District’s assistance. She
stated the District requested a climate survey be performed by the Western Area. The
Postmaster noted that Person X Manager, Workplace Environment for the Western Area and
Person Y former Western Area Workplace Environment Analyst and current Postmaster, Blue
Diamond, Nevada conducted the climate survey. The record reveals a report was prepared as
a result of the climate survey. Neither the Postmaster nor S1 knew if Complainant’s comments
were included in the survey. S1 stated he would not be privileged to that kind of information.

The record contains an affidavit from Person X. He explained that his role was to set up the
logistics for the climate survey, recruit assistance from the Western Area Workplace
Environment Analyst, interview his share of employees, analyze the data gathered, and write
the report. Person X noted the climate survey was conducted from November 2 – 4, 2010.
He stated approximately 54 employees were interviewed, including Complainant. Person X
stated the report focused on themes and common concerns that many employees discussed. He
stated these themes were presented in general terms in the report. Person X stated that not
knowing what Complainant said, he does not know if her comments or sentiments were
included in any discussion regarding any of the themes. Person X prepared the report and gave
it to the Manager, Human Resources for the Arizona District, the Acting Manager of Postal
Operations in the Nevada-Sierra District, and the Postmaster.

In her affidavit, Person Y stated she was contacted by the Manager of Workplace
Environment, Western Area, to assist with the climate assessment. She explained her role was
to assist Person X in conducting the assessment. She stated they developed: the basic, general
questions to be asked of each employee; the questions to ask for numerical rankings so they
would have some means of quantifying the information gained; discussed possible
recommendations; and met with the District Manager of HR to share the findings. With regard
to the allegation that Complainant’s comments were not included in the climate survey, Person
Y noted that the report generated from the interviews was a compilation of the input received.
She explained that in conducting a climate survey, there was a very deliberate effort made to
protect the anonymity of each employee by reporting the issues in general terms and not
reporting them in such a way that no one could point to a comment and “know” who made that
comment. However, Person Y stated that all information gathered in the interviews was used
to compile the report.

Upon review, we find that Complainant failed to show that she was treated differently with
regard to her comments during the climate survey. The record shows that all employees
interviewed were asked the same general questions. The record reveals that a report was
generated from the interviews and that the results were reported in general terms.
Complainant failed to show that she was treated differently due to her age or protected activity.
0120141869

10

With regard to issue (8), Complainant appears to allege that she was sexually harassed when
coworker 1 showed her tattoo, thong, and belly ring to S1 and received preferential treatment
in duties, bids, breaks, and phone usage. Complainant claimed she was harassed because of
her age since coworker 1 is younger than her and “at my age I could not attempt to get the
same treatment with her exposures.” Complainant claimed she was harassed because of her
prior EEO activity because once she participated in EEO activity, the favoritism increased.

S1 stated that coworker 1 showed him her belly ring only. He stated this occurred five to six
years ago and was investigated at the time. S1 stated he told coworker 1 not to do it again. S1
stated coworker 1 “just came up and was showing her new ring off.”

Coworker 1 admitted that she showed S1 her belly ring almost five to six years ago.
Coworker 1 stated she did not show her tattoo or thong to S1.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. The record reveals that
coworker 1 showed her belly ring to S1. In this case, we conclude that the single event
described by Complainant, in the context she presented, was not sufficiently severe or
pervasive to state a viable claim of discriminatory harassment in violation of Title VII.

After a careful review of the record, the Commission concludes that to the extent Complainant
is alleging sexual harassment, she failed to establish a prima facie case of hostile work
environment harassment based on her sex. We find that she did not prove by a preponderance
of the evidence that she had been subjected to harassment of such a nature that “a reasonable
person would find [it] hostile or abusive.” Harris, supra, at 21-22.

We note that Complainant has not alleged that she has been subjected to other incidents of a
similar nature. Nor is there evidence that other employees at the facility have been subjected
to sexually inappropriate behavior. Both coworker 1 and S1 stated the incident in question
happened five or six years ago. Upon review, we find that the incident in question was not
part of a pattern of sexual harassment. Additionally, we note there is no evidence or claim that
S1 encouraged or required such conduct in order for an employee to gain favoritism.
Additionally, we note that Complainant failed to show that issue (8) occurred because of her
age or in reprisal for protected activity.

With regard to issue (9), Complainant alleged that coworker 4 sold tacos and brought
supervisors food. Complainant stated that coworker 4 sold tacos on a monthly basis until
recently. Complainant claimed coworker 4 used on the clock time to take orders for tacos to
support his wife’s church. Complainant also stated that food was bought on a regular basis by
the favorites for management and is put in the supervisor’s areas and only the favorites and
management partake. Complainant claimed coworker 1, coworker 3, coworker 4, coworker 6,
0120141869

11
and coworker 7 brought in food for management. Complainant argued it is against the rules of
conduct for management to accept gifts from employees they supervise. Complainant claimed
management would then provide preferential treatment to the employees and exclude non-
favorite employees. Complainant stated these activities were because of her age since this is
part of the hostile work environment to which she is subjected. Complainant claimed this was
reprisal since her EEO activity started on March 12, 2011, and the retaliation intensified after
her EEO activity.

In his affidavit, S1 stated that every employee at the Pahrump Post Office is allowed to sell
tacos at work. S1 stated that tacos have been sold at the Pahrump Post Office on and off for
the past couple of years. He stated the majority of employees look forward to the tacos and he
called it a morale booster. He stated the sale of tacos does not interfere with the efficient flow
of work at the Agency. S1 also addressed Complainant’s claim that some employees bring
food to supervisors and that the “favorite” employees are allowed to eat food with
management, while Complainant is excluded. S1 stated that no one is excluded from eating
food with management. He stated it is each individual’s own decision whether they want to
participate. S1 stated that supervisors, carriers, and clerks buy snacks at different times.

The Postmaster confirmed the selling of tacos was a morale booster. She noted that they used
to do it all the time before she arrived at the office and they wanted to reinstate it. The
Postmaster stated that after the climate survey, she thought it would be a good idea and one
way to start restoring camaraderie. The Postmaster noted that she would allow any employee
sell food at work if they asked her to do so. The Postmaster stated that no one is excluded
from eating food with management. She noted that at the supervisors’ area there are always
bags of snacks for everyone to eat. She stated that in her office there are always snacks for
everyone to eat. The Postmaster explained that in the clerk section they have an area for
snacks that everyone can eat. She noted that management, clerks, and carriers bring in snacks
for everyone’s enjoyment. The Postmaster stated that everyone buys snacks at different times.

Upon review, we find Complainant failed to show that she was treated differently based on a
protected category with regard to allegation (9). The record confirms that coworker 4 was
allowed to sell tacos at work and that other employees brought food to share. Both S1 and the
Postmaster saw the selling of food as a morale booster. The Postmaster stated she would allow
any employee to sell food at work if they asked her to do so. There is no claim that
Complainant or any other employee asked and was denied the opportunity to sell food at work.
Additionally, the record confirms that several employees ate food with management and that
management, clerks, and carriers all brought in food for everyone to eat. Complainant failed
to establish that the Agency’s actions were a pretext for discrimination or retaliation.

With regard to issue (10), Complainant stated S1 issued her a Letter of Warning on May 10,
2011. She stated the Letter of Warning was reduced to a discussion on June 9, 2011, after she
filed her EEO complaint to attempt to get it to go away. Complainant explained the usual
procedure is to have a discussion for being on the wrong clock functions. Complainant noted
that coworker 3 falsified her clock ring and was not on the correct clock ring. Complainant
0120141869

12
stated coworker 3 was not issued discipline. Complainant stated she took a picture of the
Postmaster delaying priority mail and other employees took pictures also but they did not
receive discipline. Complainant stated she was singled out for discipline.

Complainant cited coworker 2, coworker 3, and coworker 4 as comparatives. She alleged that
coworker 2 was in a postal vehicle wreck but did not receive discipline. Complainant stated
that coworker 3 took multiple breaks while on the wrong clock rings. Additionally,
Complainant states that coworker 4 took pictures in the office. Complainant claimed the Letter
of Warning was based on age because of the comments that she should retire because she was
old. Complainant stated the Letter of Warning was issued in reprisal for protected activity
because the Postmaster intends to get rid of anyone who stands up against her.

We note that the Postmaster stated she made the decision to issue Complainant the Letter of
Warning in May 2011. The charge was Failure to Follow Instructions and Failure to Follow
Postmaster’s Expectations. The Letter of Warning notes that Complainant had been previously
made aware of her obligation to follow management’s instructions including distributing box
mail in order, swiping her timecard into the correct function, and following procedures of
lunch relief. The Agency noted that on April 8, 2011, Complainant failed to follow these
instructions.

The Agency noted that during an investigative interview, Complainant admitted that DPS
letters are to be boxed first. The Agency noted that Complainant acknowledged that she was
supposed to swipe to the correct function when working on distribution, boxing, and windows.
The Agency noted that when Complainant was asked why on April 8, 2011, she did not swipe
to parcel distribution and close out windows, she stated “probably forgot, don’t know.” The
Agency noted that Complainant was asked if she took a photo of the mail and she responded
that she did. The Agency stated that when Complainant was asked if she knew it was illegal to
take recordings of mail, she responded that “I erased it. No I didn’t.” The Agency noted that
Complainant stated she did not have permission from a supervisor to take a photo of the mail.

With regard to the identified comparatives, S1 stated he had no knowledge that coworker 3
falsified her clock rings. S1 stated he was not aware of coworker 2 having a vehicle accident.
S1 had no knowledge of Complainant taking photos of employees delaying mail at the Pahrump
Post Office.

The Postmaster explained she was the one that saw Complainant not clocking in to the right
function. The Postmaster stated she issued the discipline for Complainant. The Postmaster
stated that on April 12, 2011, she held an Investigative Interview for Failure to Follow
Instructions and Failure to Follow Postmasters Expectations. The Postmaster stated that during
the interview, she asked Complainant whether she took a photo of the mail and Complainant
replied that she did. The Postmaster stated she asked Complainant if she realized it was illegal
to take recordings of mail and Complainant responded that she did not realize that and she
stated that she erased it. The Postmaster stated that coworker 2 has not had a vehicle accident
0120141869

13
since she became Postmaster. Moreover, the Postmaster stated she was not aware that
coworker 3 was on the wrong clock and/or took multiple breaks but was not disciplined.

In the present case, the Agency produced legitimate, nondiscriminatory reasons for issuing
Complainant a Letter of Warning on May 10, 2011. The Agency noted Complainant was
charged with Failure to Follow Instructions and Failure to Follow Postmaster’s Expectations
for her actions on April 8, 2011. Complainant failed to show that the articulated
nondiscriminatory reasons were a pretext for discrimination or retaliation.

With regard to issue (11), Complainant claimed that on June 14, 2011, she was sent nine leave
slips by S1 to cover a 30-day absence. Complainant stated she was absent June 9, 2011, to
September 1, 2011. Complainant claimed the leave slips were sent to make it appear that she
had taken many absences. Complainant stated she did not use the multiple leave slips she was
given, but she only used one leave slip. Complainant claimed this was done based on her age
because the Postmaster was going to use this to fire her. Complainant believed the leave slips
were sent to her because of her participation in EEO activity because the Postmaster wanted to
fire her because she did not fit in and stood up against management.

With regard to issue (11), S1 explained that Complainant called in FMLA sick leave, so he
made copies of the 3971s and sent them to her for her signature. S1 stated that as of July 27,
2011, Complainant did not return the 3971s. He noted that Complainant has been out on
FMLA sick leave since June 9, 2011. S1 noted that leave had to be input by actual days
scheduled to work, thus creating multiple leave slips. S1 stated that Complainant provided one
completed leave slip for her absence in June. Complainant failed to show that the Agency’s
articulated reasons for its actions were based on discriminatory or retaliatory animus.

For purposes of this decision, we assume issues (4), (5), and (7) occurred as alleged.
However, with regard to issue (4), we find Complainant failed to show that the whispering
occurred because of her age or in reprisal for protected activity. Additionally, even assuming
for the sake of argument that the two retirement comments (one by an investigator from outside
the Pahrump Office and one by a coworker) were age related, Complainant has not established
that the incidents cited were sufficiently severe or pervasive such that they unreasonably
interfered with her work environment. Moreover, other than Complainant’s bare assertions we
find there is no evidence linking the identified incidents to reprisal.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

0120141869

14
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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.

0120141869

15
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 23, 2017
Date