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

Equal Employment Opportunity Commission

Sep 18, 2015

01-2013-3370-0500 (E.E.O.C. Sep. 18, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120133370

Hearing No. 510-2012-00034X

Agency No. 4H-335-0089-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s August 1, 2013 final order 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales,
Services/Distribution Associate at the Agency’s Post Office in Casselberry, Florida. On
January 31, 2011, Complainant went on break and left her cash drawer unsecured. Inside
Complainant’s drawer were rolls of pennies and quarters. Complainant’s supervisor (S1) saw
that Complainant had left her drawer unsecured, took photographs of the open and unsecured
cash drawer, and stayed at the counter until Complainant returned from her break. S1 then
questioned Complainant about the drawer and Complainant initially denied there was cash in
the drawer, but remembered there were coins. Agency regulations require retail associates and
clerks to lock and secure cash drawers during any temporary absence from the retail counter.
As a result of Complainant’s failure to lock and secure her drawer prior to taking her break,
S1 issued Complainant a seven-day suspension.

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On March 3, 2011, S1 held an official discussion with Complainant regarding Complainant
disrupting employees on the workroom floor. Complainant denied that she was disrupting her
co-workers and became angry after S1 informed her of what she observed. Complainant told
S1 that she would never lie as she was a Christian woman and S1 responded “you call yourself
a Christian and you pray, but what you are telling me is not accurate as to what I had
observed.” Complainant alleged that S1 stated “you call yourself a Christian, well you better
start praying real hard.”

On June 7, 2011, Complainant discovered that she was missing a credit card receipt for
$37.10, and she was unable to locate it. S1 held an investigative interview with Complainant
on June 15, 2011, and, on July 5, 2011, issued Complainant a 14-day suspension for
unsatisfactory performance for the lost receipt. On June 24, 2011, Complainant informed S1
that she had lost a customer’s check. The check was found that following day by a co-worker
lodged between two pieces of metal. In addition, Complainant lost another credit card receipt
on July 12, 2011. As a result, on July 19, 2011, S1 issued Complainant two Letters of
Warning for failure to follow instructions.

On July 14, 2011, Complainant answered a phone call from someone with the Postal
Inspection Service who instructed her to find a certified letter and hold it for a Postal
Inspector. Complainant wrote on the piece of mail “Do not deliver, hold for [Postal
Inspector].” S1 subsequently held an investigative interview with Complainant regarding the
piece of mail. S1 learned that Complainant was never instructed to write on the piece of mail.
As a result, S1 issued Complainant a Letter of Warning for failure to follow instructions on
July 19, 2011.

On May 23, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of religion (Roman Catholic) when:

1. She received a Notice of Seven-Day Suspension, dated February 11, 2011, for
Unsatisfactory Performance for leaving her cash drawer open and unlocked on
January 31, 2011, and

2. On March 3, 2011, her supervisor said (in a threatening or demeaning manner)
“you call yourself a Christian, well you better start praying real hard.”

On July 22, 2011, Complainant amended her complaint to allege that the Agency discriminated
against her in reprisal for prior protected EEO activity when:

3. She received a Notice of 14-Day Suspension Unsatisfactory Performance for a
missing credit card receipt, dated July 5, 2011, and

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4. She was issued three (3) Letters of Warning, dated July 19, 2011, for Failure to
Follow Instructions.1

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). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on July 16, 2013.

In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, Complainant did not dispute any of the conduct for which
she was disciplined. Complainant acknowledged that she lost credit card receipts, a check, and
acknowledged that she wrote on a piece of mail to hold for the Inspection Service. The
Agency asserted, and it is not in dispute, that credit card receipts and checks are required to
account for all retail transactions, and the loss of such documents violates Agency policies and
rules. Complainant acknowledged that she left a cash drawer open with quarters in it, but
contended that there was a white powder on them and she set them aside to see if that powder
was anthrax. According to Complainant, she then forgot the quarters with possible anthrax
were in the open drawer and went on break. The AJ concluded that other than mere
speculation, conjecture, and attempted minimization of the unsatisfactory conduct,
Complainant had presented no evidence demonstrating that the Agency's explanations for its
actions were pretextual.

Finally, as to S1’s comment that Complainant is a “Christian woman, well you better start
praying real hard,” the AJ determined that this was a stray remark made in response to what
S1 felt was Complainant’s lack of truthfulness. The AJ found that the remark did not
demonstrate discriminatory animus nor rose to the level of a hostile work environment. As a
result, the AJ found that Complainant had not been subjected to discrimination, reprisal, or a
hostile work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant offers explanations for her actions including, that the drawer she left
unsecured was a separate drawer that did not contain substantial amounts of cash and that she
had intended to show a manager a whitish powder on the roll of coins. Further, Complainant
contends that she was not told by the Inspection Service that the piece of mail was evidence
and adds that employees “mark up mail” on a regular basis. In addition, Complainant argues
that S1’s comment shows discriminatory animus towards her. Complainant claims that S1 uses
intimidation tactics, threats, and harassment in her pursuit of going after someone she dislikes

1 The Agency dismissed several additional claims. Complainant raised no challenges to the
Agency's dismissal before the AJ or on appeal; therefore, the Commission will not address
those claims in this decision.
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or anyone who may challenge her actions. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (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, 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).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that she established a prima facie case of discrimination and reprisal, Complainant failed to
present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions.
More specifically, as to claim (1), S1 affirmed that she issued Complainant the seven-day
suspension after she observed that Complainant failed to lock and secure her cash drawer while
she took a 10-minute break in violation of Agency rules and policies. ROI, at 434-36, ROI,
Ex. 9. S1 considered Complainant’s prior disciplinary history in issuing the suspension. ROI,
Ex. 9. With respect to claim (3), S1 confirmed that Complainant lost a credit card receipt on
June 7, 2010, and was unable to locate it. ROI, at 443. After conducting an investigative
interview, S1 issued Complainant the 14-day suspension for unsatisfactory performance based
on her failure to secure the credit card receipt in violation of Agency rules and regulations.
ROI, Ex. 20. Finally, regarding claim (4), Complainant received two Letters of Warning for
failure to follow instructions after she misplaced a customer’s check and another credit card
receipt in violation of the Agency’s rules and regulations. ROI, Exs. 24 and 28. S1 issued
Complainant a third Letter of Warning for failure to follow instructions after Complainant
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wrote on a piece of mail that she had only been instructed to hold for a Postal Inspector. ROI,
at 452, ROI, Ex. 32.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
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 Harassment

Finally, to the extent that Complainant alleges that she was subjected to harassment, the
Commission notes that 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 a protected class. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

Upon review, the Commission agrees with the AJ that Complainant did not establish that she
was subjected to harassment by S1. The record supports the AJ's determination that, viewing
the evidence in the light most favorable to Complainant, the remark, even if made, was an
isolated utterance that fails to rise to the level of objectively unreasonable behavior that would
trigger a violation of Title VII. As a result, the Commission finds no basis to disturb the AJ's
summary judgment decision finding that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.

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
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the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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
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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 Complainants 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 18, 2015
Date