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

Equal Employment Opportunity Commission

Jul 15, 2015

01-2013-3033-0500 (E.E.O.C. Jul. 15, 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. 0120133033

Hearing Nos. 410-2010-00077X; 410-2011-00082X

Agency Nos. 4H-300-161-09; 4H-300-0214-10; 4H-300-0048-10

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s May 16, 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. 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 final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Post Office in Snellville, Georgia. On July 15, 2009, Complainant presented a letter
to a supervisor addressed to the Postmaster. Complainant was seeking information as to why
medical documentation was requested for absences, who she should submit medical
documentation to, and references in the Employee and Labor Relations Manual (ELM) that
state medical documentation is required. As a result, the Postmaster left a note for
Complainant to see her. When Complainant entered the Postmaster’s office, she told the
Postmaster that she did not have time for this today. The Postmaster provided Complainant a
copy of the ELM references on leave. Complainant left her office, but then came back into
her office a second time raising her voice. The Postmaster told Complainant that they could
talk about it tomorrow, but Complainant continued to be loud and disruptive on the workroom
floor. The Postmaster told Complainant that she needed to get cleared and get off the clock.
Complainant responded that she was already off the clock and the Postmaster informed her that
she needed to leave the workroom floor.
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On or around November 6, 2009, Complainant submitted medical documentation indicating
that she had restrictions including a need for frequent breaks, no prolonged walking or
standing, and no working beyond eight hours a day. Based on the Agency’s projections,
Complainant should have been able to complete her route within eight hours; however,
Complainant believed that her route was overburdened and often requested street assistance.
Complainant’s supervisor (S1) would instead provide office assistance to help Complainant get
on the street sooner and deliver the route within the projected eight-hour time. S1 believed
that Complainant often attempted to demonstrate that her route was overburdened by taking
longer than the projected eight hours to complete it; therefore, any incurred overtime was
unnecessary and unauthorized. In addition, the District began mandating that one to three
routes be counted. Management chose one of the three lowest performing routes to go through
an efficiency check; however, every carrier (including Complainant) underwent efficiency
checks both on the street and in the office.

On December 16, 2009, Complainant left work angry after an argument with her supervisor
and requested sick leave. Complainant additionally called in sick on December 17, 2009, but
returned to work on December 18, 2009. Upon her return, Complainant submitted
documentation regarding her open Family Medical Leave Act case involving arthritis in her
knees. On December 22, 2009, Complainant submitted contradictory medical documentation
claiming a shoulder injury from a previous on-the-job injury. The Postmaster had concerns
about Complainant's medical documentation and claims because the documentation
Complainant submitted contradicted each other. As a result, the Postmaster contacted the
Office of Inspector General (OIG). Ultimately, OIG declined to investigate the matter.

Around March 26, 2010, Complainant placed a penalty letter envelope in Centerville's
outgoing mail bucket. S1 removed the mail, returned it to Complainant, and explained to
Complainant that she should not be using Postal envelopes for personal use. The letter was
addressed to a Union Representative, but S1 did not know at the time that it was Union
business. Complainant claimed it was personal and he gave it back to her.

On July 25, 2009, December 29, 2009, and July 30, 2010, Complainant filed EEO complaints
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of disability and in reprisal for prior protected EEO activity as
evidenced by multiple incidents including, inter alia, in November 2009, she was worked
overtime outside her restrictions; denied assistance; given efficiency route checks; mocked by
supervisors; and others were allowed to case her route; in December 2009, she was reported to
the Office of Inspector General; and in March 2010, her mail was removed, she was
micromanaged and followed around by her managers.1

1 On August 20, 2009, the Agency dismissed two additional claims for failure to state a claim.
Complainant did not raise any challenges to the dismissal of these claims before the Equal
Employment Opportunity Commission Administrative Judge (AJ) or on appeal. In addition,
Complainant withdrew several claims and the bases of race and color while the complaint was
pending before the AJ. Accordingly, the Commission will not address these claims on appeal.

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At the conclusion of the investigation of the complaints, the Agency provided Complainant
with copies of the reports of investigation and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ consolidated the complaints, held a hearing on January 11, 2012
and October 31, 2012, and subsequently issued a decision on May 7, 2013.

In her decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that Complainant
failed to show that the alleged incidents were based on her protected classes. The AJ
concluded that the alleged incidents involved personnel decisions such as determining job
assignments, work schedules and overtime, leave requests approval/disapproval and
supervision of employees with no evidence of discriminatory or retaliatory animus. The AJ
determined that Complainant failed to show that the Agency’s reasons for its actions were
pretext for unlawful discrimination or reprisal. 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.
Complainant filed the instant appeal without submitting any arguments or contentions in
support.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
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Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510U. S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on her disability and prior protected activity,
management subjected her to a hostile work environment. Complainant alleged several
incidents of what she believed to be discriminatory and retaliatory harassment. The
Commission finds that substantial record evidence supports the AJ's determination that
Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive
to create a hostile work environment.

Additionally, the Commission concurs with the AJ that Complainant failed to show that the
alleged incidents were based on her protected classes. For example, Complainant claimed that
she was denied assistance on her route which resulted in her restrictions being violated. S1
testified that, based on the Agency’s Delivery Operations Information System, Complainant
should have been able to complete her route within eight hours. Hr’g Tr., Vol. 2, at 155-56.
S1 testified that he would provide Complainant office assistance (including help casing her
route) to allow Complainant to start her route earlier. Id. at 154. S1 testified that it was often
easier for him to provide office assistance, but Complainant was frequently upset because she
preferred to have street assistance. Id. at 155. S1 noted that he talked to Complainant about
time-wasting practices and conducted efficiency checks as he did with all carriers. Id. at 183.
In addition, S1 testified that Complainant’s substitute carrier always finished Complainant’s
route within six and a half or seven hours. Id

. at 200-01. Thus, S1 testified that
Complainant’s belief that her route was overburdened and could not be completed in eight
hours was not true, and any violation of her restrictions was her own doing.
With respect to the July 15, 2009 incident, the Postmaster testified that she told Complainant to
leave the building because Complainant was off the clock and being loud and disruptive. Hr’g
Tr., Vol. 2, at 74. Regarding the March 2010 letter incident, S1 testified that he removed the
envelope from the tub and returned it to Complainant because he believed she had used a
penalty envelope for personal business. Id. at 148. Complainant was not disciplined for the
incident. Finally, the Postmaster testified that she contacted the OIG based on conflicting
medical documentation that Complainant submitted concerning her condition after she had an
altercation with a supervisor. Hr’g Tr., Vol. 2, at 77, 141-42. The Postmaster testified that
the situation did not look completely legitimate; therefore, she referred the matter to the OIG
to allow them investigate. Id

. at 77.
The Commission finds that substantial record evidence supports the AJ’s finding that
Complainant was not subjected to harassment. The record reflects that the alleged incidents
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were more likely the result of routine supervision, managerial discipline, personality conflicts,
and general workplace disputes and tribulations. Furthermore, to the extent that Complainant is
alleging disparate treatment with respect to her claims, the Commission finds that substantial
record evidence supports the AJ's determination that she has not shown that the Agency's
reasons for its actions were a pretext for reprisal. As a result, the Commission finds that
Complainant has not established that she was discriminated against. Substantial evidence
supports the AJ's findings of fact, and the Commission discerns no basis to disturb her
conclusions of law.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 15, 2015