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

Equal Employment Opportunity Commission

Sep 2, 2015

01-2012-1014-0500 (E.E.O.C. Sep. 2, 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. 0120121014

Hearing No. 510-2011-00015X

Agency No. 1H-321-0021-10

DECISION
On December 13, 2011, Complainant filed an appeal from the Agency’s November 10, 2011,
final decision concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Custodial Laborer
at the Agency’s Jacksonville Processing and Distribution Center located in Jacksonville,
Florida.

Complainant submitted medical paperwork dated February 23, 2010, stating she was pregnant
and noting her nausea and vomiting commenced on February 9, 2010. The documentation
stated she could not lift more than 20 pounds and that she may be unable to come to work on
some days during her pregnancy due to medical appointments or temporary conditions (such as
severe nausea/vomiting).

On February 26, 2010, Complainant went to Person A, Supervisor, Maintenance Operations
and stated that the chemicals in the restrooms that she was cleaning made her dizzy, light-
headed, and nauseated. As a result, she did not have to clean the restrooms from February 26,
2010 to March 26, 2010.
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Complainant submitted a Light Duty request on February 24, 2010, which included restrictions
for lifting and bending. The Light Duty request was approved on March 2, 2010, by Person
B, the Maintenance Manager.

When Person B received notice on March 16, 2010, from Person A that Complainant could not
clean the restrooms, he directed her to obtain medical documentation to support the request and
outline the chemicals which Complainant could not use.

On March 27, 2010, Complainant was assigned to clean the restrooms. Complainant refused
to do the assignment and was sent home. Complainant claimed Person A told her that, if she
could not perform her job function, which included working around chemicals, she could not
work and would have to leave the building. Complainant stated that she then asked to see the
Acting Manager Distribution Operations (Person E) and he told her he could not accommodate
her. Complainant was directed to report back to work on March 28, 2010. Complainant took
leave for March 28, 29, and 30, because she had a doctor’s appointment on March 30, 2010.

Complainant gave the Agency additional documentation regarding her medical condition on
March 30, 2010. Her medical documentation stated that Complainant is “unable to be exposed
to harsh chemicals that are used to clean at her job such as ammonia and bleach.”

On April 4, 2010, Complainant was asked to have a physical capacity form completed that
covered chemicals, solvents, and fumes. Complainant did not return that paperwork as
requested. Complainant then met with Person B on April 13, 2010, and he agreed to allow her
to avoid restroom work, and also that she could dilute the “Lemon Burst” cleaner she used in
the cafeteria.

On June 26, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), disability, and in retaliation
for protected activity when:

1. On March 26-30, 2010, she was denied work;
2. On March 27, 2010, through April 13, 2010, she was harassed regarding a
doctor’s note and her physical restrictions;
3. On March 31, 2010, she was denied mandatory hazmat training;
4. On April 13, 2010, she received a 7-Day Suspension for Improper Conduct;
5. On April 25, 2010, her privacy was violated when her brother’s obituary was
blown up and posted on the maintenance door for viewing;
6. On May 3, 2010, she received two discussions regarding her bereavement leave
and when she was sent home on March 27, 2010; and
7. On June 16, 2010, she was sexually harassed by comments from Person D
including “you look so good;” “you make me want to get me a pregnant
woman;” and “I find myself attracted to pregnant women.”

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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 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).

In its final decision, the Agency stated that Complainant alleged her privacy was violated when
her brother’s obituary was blown up and posted on the maintenance door for viewing. The
Agency stated that because this allegation was covered by the Privacy Act, the claim was
dismissed. The Agency proceeded to discuss the issue within the context of Complainant’s
harassment claim.

The Agency also stated that in claim (6), Complainant alleged she received two discussions
regarding her bereavement leave and when she was sent home on March 27, 2010. The
Agency stated that official discussions do not render an employee aggrieved and dismissed this
allegation for failure to state a claim. The Agency proceeded to discuss this issue within the
context of Complainant’s harassment claim.

The Agency noted that Complainant also claimed that she was subjected to retaliation for
expressing her concern about asbestos on the workroom floor. The Agency noted that when
Complainant was asked what protected EEO activity she believed was a factor in her
complaint, she stated that she reported a safety hazard and that management was aware of her
reporting this safety hazard. The Agency noted Complainant did not have prior EEO activity
but she stated that Person A and Person E retaliated against her because she made management
aware of a safety issue. The Agency stated that Complainant failed to establish that she
engaged in prior protected activity.

The Agency noted Complainant claimed the medical condition she considered a disability was
her “high risk” pregnancy which was diagnosed in February 2010, and was expected to last
until September 2010. The Agency noted that Complainant claimed her impairment flared up
or got worse with stress, overexertion, or when she was exposed to chemicals. The Agency
noted Complainant stated she had to make two emergency room visits for miscarriages in April
and May 2010. The Agency stated Complainant claimed she notified Person C and Person A
of her condition on February 13, 2010, and the medical unit of her limitations in March 2010.
The Agency noted Complainant also provided documentation of her condition to the Agency on
March 30, 2010, claiming it had not been requested before that time until after she addressed a
safety issue with management.

The Agency determined there was no evidence that Complainant had a complication with her
pregnancy that constituted a permanent or a long-lasting condition. The Agency found
Complainant was not substantially limited in a major life activity and thus, not disabled. As
such, the Agency found Complainant was not entitled to a reasonable accommodation.

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With regard to Complainant’s claims, the Agency noted that Complainant alleged three discrete
actions that would independently state a claim: on March 26-30, 2010, Complainant was
denied work (claim (1)), on March 31, 2010, Complainant was denied mandatory hazmat
training (claim (3)); and on April 13, 2010, Complainant received a 7-Day Suspension for
Improper Conduct (claim (4)). The Agency found it articulated legitimate, nondiscriminatory
reasons for its actions and that Complainant failed to show that its actions were a pretext for
discrimination.

With regard to the harassment claim, the Agency noted that with regard to claims (1) – (6),
Complainant established that she belonged to the protected classes of African-American and
female. The Agency determined Complainant did not establish she was in the classes of
persons with a disability or those who had engaged in prior protected activity. Further, the
Agency found Complainant did not show that claims (1) – (6) were unwelcome personal slurs
or other denigrating or insulting verbal or physical conduct. The Agency stated that the
majority of the incidents involved Complainant’s work performance and management providing
instructions. The Agency also found Complainant failed to show by a preponderance of
evidence that these six actions were based on Complainant’s protected classes, and the Agency
noted that she herself admitted in many instances they were not. The Agency determined
Complainant did not show that the six incidents complained of rose to the level of
discriminatory harassment.

With regard to claim (7), the Agency found Complainant established a prima facie case of
harassment as she is in the protected sex group of female. The Agency assumed that
Complainant established she was subjected to unwelcome harassment when her coworker made
comments to her that she understood to be of a sexual nature. The Agency assumed the
comments were based on her sex. However, the Agency found Complainant did not show that
the incidents complained of rose to the level of actionable harassment or that there existed a
basis for imputing liability to the Agency.

On appeal, Complainant claimed the Agency erred by dismissing her disability claim.
Complainant claimed that her pregnancy related medical condition constituted a disability.
Complainant argued that the Agency failed to accommodate her disability and failed to engage
in the interactive process with her. Complainant stated that when she was placed on the
restroom route on March 26, 2010, she informed her managers that she could not work around
harsh chemicals while she was suffering from her ongoing pregnancy related medical
condition. Complainant claimed Coworker 1 was available to switch assignments with her on
March 26, 2010, but Person A refused. Complainant argued the Agency failed to
accommodate her disability when it requested medical documentation even though her medical
condition and need for reasonable accommodation were obvious as she had been provided a
reasonable accommodation for a month prior to March 26.

Complainant noted that she provided documentation to Person A on March 30, 2010, stating
she could not be exposed to harsh chemicals that were used to clean at her job such as
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ammonia and bleach. Complainant claimed that she was harassed through April 13, 2010,
when during this time she was asked to provide an additional doctor’s note.

Additionally, Complainant argued that the Agency erroneously concluded she did not engage in
protected EEO activity as the Agency failed to consider her act of requesting an
accommodation due to her disability and her opposition to the Agency’s failure to
accommodate her disability. Complainant claimed the Agency had no justification for
requesting additional documentation after she submitted her doctor’s letter on March 30, 2010.

With regard to her claim of disparate treatment based on sex/pregnancy, Complainant stated
that she was treated less favorably than Coworker 2 and Coworker 3 who were pregnant
females and were allowed to avoid restroom work during their pregnancies. Complainant
stated she was treated differently due to her pregnancy related complications compared to other
employees’ normal pregnancies.

Complainant also claimed she was discriminated against due to her race when she was sent
home and not permitted to work until she provided proper medical documentation for her
request to avoid working with chemicals and cleaning bathrooms. Complainant noted that
Coworker 2 (Caucasian) was allowed to avoid working with chemicals and cleaning
bathrooms, while she was denied this opportunity.

Complainant stated she was forced to provide medical documentation for her restriction and
then continually badgered for additional documentation although her need for accommodation
was clear and the doctor’s note was specific. Complainant stated her doctor specifically stated
she was to avoid harsh chemicals including bleach and ammonia. With regard to her race
claim, Complainant claimed that her similarly situated White counterpart, Coworker 2, was not
required to produce any evidence of a medically based restriction.

Complainant noted that on April 12, 2010, she received notice of a Seven-Day Suspension for
her alleged actions on March 23, 2010. Complainant claimed she discussed with a coworker
what she believed was a safety issue. Complainant admitted her statement regarding Person
W’s house should not have been made, but she said the statement was neither threatening nor
intimidating. Complainant contended that Coworker 4 and Coworker 5 were African-
American comparatives. Complainant stated that these individuals had a physical altercation in
June 2009, but were not disciplined. Complainant noted that the Agency claimed these
individuals were not comparatives because the video showed that the shoving or bumping
“may” have been accidental. Complainant stated that although the Agency contended that her
actions were threatening and constituted harassment, the Agency did not call a “Threat
Assessment Team” to investigate.

In response to Complainant’s appeal, the Agency stated that claims (5) and (6) were properly
dismissed. In regard to the analysis regarding retaliation, the Agency noted that Complainant
stated her claim of retaliation was not for prior protected activity but for being requested to
bring in medical documentation after she reported a safety hazard. Thus, the Agency
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reiterated that she failed to establish the first and second prong of the prima facie analysis.
The Agency noted that Complainant did establish the third prong, adverse employment action
and/or adverse treatment. Regarding the fourth prong, Complainant stated that she failed to
establish a causal connection and ultimately failed to establish retaliation discrimination.

With regard to the disability analysis, the Agency noted Complainant's only articulated claim
of disability was “high risk pregnancy.” The Agency stated the Commission has consistently
held that pregnancy itself does not constitute a disability.

With regard to the discrete incidents in her complaint, the Agency stated Complainant
established the first element of a prima facie case because she belongs to the protected race
class (African-American), and she belongs to the protected sex class (female). However, the
Agency stated she had not shown that she belongs to the protected class of persons that have
participated in prior protected activity or the protected class of persons with a disability under
the Rehabilitation Act. The Agency noted Complainant showed that she was subjected to an
adverse employment action because, at a minimum, she was issued a Seven-Day Suspension on
April 13, 2010. However, the Agency stated Complainant failed to show she was treated
differently than similarly situated individuals who were not members of her protected group.
The Agency stated that each of the named comparatives were analyzed individually as related
to each of the discrete acts.

With regard to Complainant’s claim of harassment, the Agency noted Complainant established
the first element because she belonged to the protected race class (African-American) and sex
class (female). The Agency stated Complainant has not shown that she belonged to the
protected class of persons that have participated in prior protected activity or the protected
class of persons with a disability under the Rehabilitation Act. In regard to the second prong,
the Agency stated Complainant produced no evidence in relation to any of the described actions
of unwelcome personal slurs or other denigrating or insulting verbal or physical conduct. The
Agency stated that even taking into consideration unsworn written statements submitted by
Complainant from other employees, there was no evidence of personal slurs or other
denigrating or insulting verbal or physical conduct. The Agency stated the majority of the
incidents involved Complainant's work performance and management providing instructions.
The Agency stated Complainant failed to establish the second prong of a prima facie case of
harassment regarding the actions taken. Moreover, the Agency stated there was no evidence,
let alone a preponderance of the evidence, that the six allegedly harassing actions were based
on Complainant's protected classes, and she herself has admitted in many instances they were
not. Thus, the Agency stated Complainant failed to show the third prong of a prima facie case
of harassment. The Agency stated Complainant also failed to meet the fourth prong in that she
has not shown that the six incidents complained of rose to the level of discriminatory
harassment.
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ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 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 dismissal of claims (5) and (6). We find that to the
extent Complainant claimed that the posting of her brother’s obituary violated the Privacy Act,
this claim was properly dismissed for failure to state a claim. Similarly, we find claim (6)
concerning two official discussions by itself does not state a claim. However, we find the
Agency properly considered both claims (5) and (6) as part of Complainant’s overall clam of
harassment.

For purposes of this decision, we assume Complainant is a qualified individual with a
disability. Additionally, we find that Complainant’s request for a reasonable accommodation
constituted protected EEO activity.

Discrete acts
With regard to claim (1), Complainant claimed she was denied work from March 26, 2010
through March 30, 2010, when Person A told her that, if she could not perform her job
function, which included working around chemicals, she could not work and would have to
leave the building. Complainant stated that she then asked to see the Acting Manager
Distribution Operations (Person E) and he told her he could not accommodate her even though
someone was willing to switch assignments. Complainant stated she told management she had
a doctor’s appointment on March 30, 2010, and she asked to work until then, but they refused.
Complainant cited Coworker 2 and Coworker 3, females who were pregnant, as comparatives
who were accommodated.

In her affidavit, Person A stated that March 26, 2010, was Complainant’s regularly scheduled
off day. Person A stated Complainant refused to perform her assigned restroom route on
March 27, 2010, which was cause for removal from the workroom floor. Person A stated she
instructed Complainant to report back to work on her next scheduled work day (March 28,
2010), but Complainant stated she had a doctor’s appointment on Tuesday, March 30, 2010,
and asked if she could take leave until she saw the doctor. Person A maintained that as of
March 26, 2010, Complainant had not provided documentation to support her request to not
clean the restrooms.
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Person E asserted he did not deny Complainant work. Person E explained that he was called
into a meeting with Complainant, Person A, and a union steward on March 27, 2010, when he
was Tour 1 Acting Manager Distribution Operations. Person E stated he was told that
Complainant asserted she was unable to clean the restrooms because of chemical exposure and
her current pregnancy. Person E noted that Person A advised Complainant that her current
medical documentation did not reflect her inability to work with basic cleaners and that
Complainant would have to get her medical information updated. Person E stated that
Complainant stated she had a doctor’s appointment on Tuesday and she could have him update
her medical paperwork to include her restriction of not being able to work with the cleaning
chemicals. Person E stated that at that time, Person A informed Complainant that there was no
other work available for her and that Complainant could take annual leave for the night.
Person E stated Person A told Complainant that she would have to come in each day and, if
she were unable to do the work that was assigned, she would have to leave. Person E stated
Complainant opted to take annual leave until she had her medical appointment.

With regard to the named comparatives, the record reveals that both Coworker 2 and
Coworker 3 were females, which was the same protected class as Complainant. Moreover, the
record reveals that Coworker 3 was African-American and thus, the same race as
Complainant. The record also reveals that Coworker 3 was a Mail Processing Clerk, and not a
Laborer Custodian as Complainant. The record reveals that neither Coworker 2 nor Coworker
3 were supervised by Person A or Person C as was Complainant. Moreover, Coworker 2
worked on Tour 2, not Tour 1 as Complainant. We note that in his affidavit, Person C stated
that it was much easier to accommodate Custodians on Tour 2 and to schedule people around
the restroom on Tour 2 because there were so many Custodians on Tour 2. Person C stated
that during the relevant time, when Complainant’s was on Tour 1, there were sometimes only
two or three Custodians a night. Person C stated that with only two or three Custodians, the
Custodians on Tour 1 would get restroom routes more often.

In her affidavit, Complainant stated she did not believe that sex was a factor with regard to
claim (1). Complainant stated she believed race was a factor since the Agency accommodated
a Caucasian female during her entire pregnancy and did not require documentation from the
Caucasian female. Complainant stated she believed her medical condition was a factor because
working around harsh chemicals posed a safety risk to her and her unborn child. Complainant
stated that race was a factor because Coworker 2, who was Caucasian, was accommodated.

Upon review, we note the Agency presented legitimate, nondiscriminatory reasons for its
actions. We find Complainant failed to show that the Agency’s actions were a pretext for
discrimination or retaliation.

With regard to claim (3), Complainant claimed she was denied mandatory hazmat training on
March 31, 2010. In her affidavit, Person A stated that Hazardous Materials Spills or Leaks
was an OSHA requirement safety talk given annually. Person A explained that the safety talk
was given on April 7, 2010, and Complainant signed the attendance sheet at a later date since
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she was on annual leave the night the talk was given. Person A also noted Complainant
attended an eight-hour Hazwoper training class dated May 18, 2010, for which she was
scheduled. The record contains a sign-in sheet for training on April 7, 2010, FY 2010 Tour 1
Maintenance (P&DC) Safety Talk 8 Hazardous Materials Spills or Leaks, containing
Complainant’s signature.

In her affidavit, Complainant stated she felt she should not have been denied the training
because it was a mandatory eight-hour class, and her job required her to work around and use
chemicals. Complainant acknowledged receiving the training in May, 2010. Also,
Complainant stated in her affidavit that she did not believe her sex, race, or disability were
factors when she was denied training. Upon review, we find Complainant failed to show that
the Agency’s actions were a pretext for discrimination or retaliation.

With regard to claim (4), Complainant claimed that on April 13, 2010, Complainant received a
7-Day Suspension for Improper Conduct. Complainant stated that Coworker 4, Maintenance
(supervised by Person A and Person C), and Coworker 5, Management Stat Program
(supervised by Person F), were more favorably treated than she was when they were involved
in a physical altercation on June 12, 2009, but did not receive any discipline.

In her affidavit, Person A stated that she had not issued a Notice of Seven-Day Suspension for
Improper Conduct for violating the Zero Tolerance Policy/Inappropriate Behavior/Acts of
Violence to any other employees under her chain of command within the past year. Person A
stated she did not know Coworker 5, did not witness an altercation involving him, and it had
not been brought to her attention that an altercation had occurred.

Person C stated that he was aware of the incident involving Coworker 4 and Coworker 5.
Person C stated there was inconclusive information regarding the situation, but it involved a
claim by Coworker 4 that Coworker 5 had pushed him as Coworker 5 was trying to get into
the elevator.

The Agency noted that Coworker 5 had a position in the Management Stat Program and was
not a Custodian as was Complainant. The Agency stated he was not similarly situated to
Complainant. The Agency also noted that Complainant was issued the suspension by Person
A, who did not know Coworker 5 and was not aware of the altercation with which he had
allegedly been involved. The Agency also stated that Coworker 4 and Coworker 5 did not
engage in the same or similar conduct as that in which Complainant had engaged.

Even assuming Complainant established a prima facie case with regard to claim (4), we find
the Agency articulated legitimate, nondiscriminatory reasons for its actions. Person A stated
she issued Complainant a Seven-Day Suspension for Improper Conduct on the workroom floor
(concurred with by Person G). Person A stated that Complainant had not told her as
Complainant’s immediate supervisor, that she had a problem performing her duties on the
workroom floor; rather, she told a mail processing supervisor about the situation and when she
did not get a resolution, she took the matter into her own hands. Person A noted that
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Complainant confronted Mail Processor W about her housekeeping practices around the
machine that Mail Processor W was operating and told her that that her home must look the
same way, which caused Mail Processor W to leave her work area, stop processing mail, and
call Person A on the radio to come and diffuse the situation.

Person C noted that Complainant told a supervisor that there were too many tray labels on the
floor, and she proceeded to go to the employee on a DBCS machine and tell the employee that,
if her workplace looked like this, then she could not imagine what her house looked like.
Person C stated that Complainant continued to have a verbal altercation with the employee
until the employee left her position and went to find a supervisor.

Regarding the incident with Coworker 4 and Coworker 5, the record reveals Person C
conducted an investigation into the incident between the two employees. Person C stated the
evidence was inconclusive in connection with any alleged assault.

Complainant states she felt she should not have been issued the discipline because she notified
a supervisor several times prior to the incident about her concern; and she never threatened the
employee. Complainant stated she only informed the employee of the safety risk posed by
creating an unsafe work environment. In her affidavit, Complainant stated she did not believe
her sex or alleged disability were a factor in receiving the discipline. Upon review, we find
Complainant failed to show that the Agency’s actions were a pretext for discrimination or
retaliation.

Reasonable Accommodation
For purposes of this decision, we assume Complainant is a qualified individual with a
disability. The record reveals Complainant first asked for the reasonable accommodation of
not working on the restroom route on February 26, 2010, when she informed management that
the chemicals in the restrooms that she was cleaning made her dizzy, light-headed, and
nauseated. As a result, she did not have to clean the restrooms from February 26, 2010 to
March 26, 2010.

On March 27, 2010, Complainant was assigned to clean the restrooms, and she requested again
not to work around harsh chemicals while she was suffering her pregnancy related medical
condition. Prior to this time, Complainant had not supplied any medical documentation
indicating that she could not work around any specific chemicals as a result of her medical
condition. While Complainant did have certain documented medical restrictions prior to
March 27, 2010, we note these were restrictions on lifting and bending.

Upon review, we find Complainant failed to establish that she was denied a reasonable
accommodation from March 26 – 30, 2010. Specifically, we note that Complainant did not
supply the Agency with any medical documentation prior to March 30, 2010, documenting her
inability to work around chemicals. We note that once Complainant brought in medical
documentation on March 30, 2010, indicating that she could not be exposed to harsh chemicals
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that are used to clean at her job such as ammonia and bleach, she was not assigned to the
bathroom route again. Despite Complainant’s contention to the contrary, there is no indication
that Complainant’s medical condition and need for reasonable accommodation were obvious.
Moreover, while the Agency had afforded Complainant the opportunity to be off the restroom
route from February 26 – March 16, 2010, we find that did not mean that the Agency had to
continue to keep Complainant off the restroom route absent appropriate medical
documentation.

Claim (2)
Complainant also claimed that on March 27, 2010, through April 13, 2010, she was harassed
regarding a doctor’s note and her physical restrictions. As stated above, Complainant had no
medical documentation on file as of March 27, 2010, stating that she could not work on the
restroom route or that she was restricted from working with any chemicals. Thus, we find that
once Complainant asked for a reasonable accommodation of not being exposed to the chemicals
used on the restroom route, the Agency was permitted to ask for medical documentation from
Complainant to support that request.

The record reveals that Complainant supplied medical documentation to the Agency on March
30, 2010, indicating that she could not be exposed to harsh chemicals that are used to clean at
her job such as ammonia and bleach. The record reveals that the Agency did not assign
Complainant to the restroom route again after this documentation was provided. However, the
record reveals that the Agency did seek further clarification from Complainant after March 30,
2010, as to the specific chemicals, solvents, and fumes which Complainant could use to
perform her work. Complainant did not provide a response to this request. Ultimately, on
April 13, 2010, the Agency determined it had sufficient documentation to support
Complainant’s request for reasonable accommodation. We find no indication that the
Agency’s actions in requesting further clarification on the specific chemicals, solvents, and
fumes which Complainant could use to have been done in bad faith or were done in a manner
to constitute harassment.

Non-sexual Harassment
We also consider Complainant’s claims (1) – (6) as a complaint of harassment. We previously
discussed issues (1) – (4) above. We will now discuss the remaining two claims.

With regard to claim (5), Complainant claimed that Person C violated her privacy on April 25,
2010, by taking the obituary from her personnel file, blowing it up, and posting it on the door
for everyone’s viewing without obtaining Complainant’s permission. Complainant stated that
she was not aware of the Agency posting any obituaries for other Agency employees’ family
members. Person A stated that she did not blow up Complainant’s brother’s obituary and post
it on the maintenance door; rather, she stated it was on the door when she arrived at work.
Person A remembered seeing the obituary for Employee X’s father posted on the time clock on
a different floor, but claimed she never posted an obituary anywhere in the office. Person A
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noted the same information had been posted at the time clocks on the workroom floor just as
any other family members’ obituaries were posted. Person C stated it was a common
occurrence at the Post Office when someone’s family member passed away to post an obituary
notice. Person C explained he received the obituary from General Clerk Z, Tour 1, on April
24, 2010. Person C said he put the obituary on the Tour 1 door on that date so Complainant’s
fellow Tour 1 maintenance employees would know what had happened and would be
compassionate towards her. Person C maintained that it was on the door until April 28, 2010,
before Complainant tore it off and complained about it. Person C noted Complainant was at
work from April 25 to April 28, 2010. Person C added that the Administrative Clerk for Tour
1 made the posters for Complainant’s brother’s obituary and posted quite a few around the
building. Person C stated that the Administrative Clerk gave him one so he could post it on the
door to let Complainant’s friends and associates know what happened. Person C stated it was
standard policy if someone passed away that the Administrative Clerk or one of the employee’s
friends posted obituaries, usually asking for money so they could give flowers or send money
to a specific charity.

With regard to claim (5), in her affidavit Complainant stated that she did not believe her sex,
race, or disability were factors with regard to the April 25, 2010 incident. Upon review, we
find Complainant failed to show that the Agency’s actions with regard to claim (5) were based
upon discrimination or retaliation.

With regard to claim (6), Complainant claimed that on May 3, 2010, she received two
discussions regarding her bereavement leave and when she was sent home on March 27, 2010.
With regard to being sent home on March 27, 2010, Complainant stated that she was not aware
of any case where management sent an employee home and did not pay them administrative
leave. Complainant stated she was given an official discussion because management stated that
she had unscheduled absences when she was sent home in March 2010.

Complainant also claimed she was given an official discussion on May 3, 2010, for taking
bereavement leave after her brother was killed on April 13, 2010. Complainant stated she
called Person C on April 16, 2010, and asked him if she could have three additional days in
addition to the three days of bereavement leave and he agreed. Complainant argued that she
should not have been given a discussion about the additional days of bereavement leave that
she took. Complainant claimed she was treated differently than Employee Y (a Mail
Processing Clerk supervised by Person H) and Employee Z (a Mail Processing Clerk
supervised by Person H), whose fathers had passed away, as they were never disciplined
because of bereavement or the number of days they had taken. Complainant admitted she did
not believe sex was a factor with regard to the incidents on March 27, 2010, or May 3, 2010.
Complainant also stated she did not believe race was a factor when she received an official
discussion on May 3, 2010; however, she alleged it was a factor when she was given an
official discussion and sent home on March 27, 2010.

We note that the Agency previously addressed Complainant’s claim that she was sent home on
March 27, 2010, for discriminatory reasons. With regard to her claim that she was subjected
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to official discussions, Person A stated that she did not conduct two discussions regarding
Complainant’s bereavement leave. Person A explained that she had conversations but not
official discussions with other employees regarding their bereavement leave when she would
tell the other employees that they were entitled to three days of bereavement leave with their
choice of sick or annual leave. Person A stated that if they required more time, they were able
to choose annual leave to cover their absence.

Person C denied giving a discussion to Complainant on May 3, 2010. Rather, Person C
maintained, that around that date, he did tell Complainant that she could only use three days of
bereavement leave and the rest of the time off would have to be non-bereavement leave as
specified under the ELM. Person C clarified that Complainant was not sent home on May 3,
2010, and noted that she actually worked on May 3, 4, and 5, 2010. Person C stated
Complainant was given every convenience that he could give her for bereavement leave.
Person C stated the told Complainant she could have additional time if needed above the
amount authorized by the Agency. Person E also stated he did not give Complainant two
discussions regarding her bereavement leave.

Upon review, with regard to claims (1) – (6), we find Complainant failed to prove that she was
subjected to harassment. Specifically, we find that Complainant failed to show that the alleged
actions were based on her protected classes, and we note that Complainant herself admitted
that several of the incidents were not based on her protected status.

Sexual Harassment
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or 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 the Complainant’s statutorily protected class; and (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, 903-905 (11th Cir. 1982). Further, the incidents must have been “sufficiently
severe and 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). 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 Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994).
In the case of coworker harassment, an Agency is responsible for acts of harassment in the
workplace where the Agency (or its agents) knew or should have known of the conduct, unless
it can be shown that it took immediate and appropriate corrective action. See Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18,
1999). An Agency can raise an affirmative defense when it shows that it took immediate and
appropriate corrective action. Id. What is appropriate remedial action will necessarily depend
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on the particular facts of the case, such as the severity and persistence of the harassment and
the effectiveness of any initial remedial steps. See Taylor v. Department of the Air Force

,
EEOC Request No. 05920194 (July 8, 1992).
Complainant alleged that on June 16, 2010, she was sexually harassed by comments from
Person D including “you look so good;” “you make me want to get me a pregnant woman;”
and “I find myself attracted to pregnant women.” Assuming Complainant established the first
four prongs of a prima facie case of sexual harassment, she still would not prevail because
there is no basis for imputing liability to the Agency. With regard to the comments made on
June 16, 2010, management took prompt and effective action -- including ordering Person D to
cease and desist from talking to Complainant or going anywhere near her. Complainant does
not claim that Person D took any other harassing actions aside from the comments made on
June 16, 2010.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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
0120121014

15
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 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, Director
Office of Federal Operations

Date
September 2, 2015