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

Equal Employment Opportunity Commission

Jul 17, 2015

01-2013-3293-0500 (E.E.O.C. Jul. 17, 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. 0120133293

Hearing No. 451-2013-00038X

Agency No. 4G-780-0129-12

DECISION
On September 6, 2013, Complainant filed an appeal from the Agency’s August 8, 2013 final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s 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 Alice, Texas. On June 15, 2012, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of disability and in
reprisal for prior protected EEO activity when, on March 20, 2012, Complainant was informed
that she was denied a higher level detail because of her injury.

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.
On June 6, 2013, the AJ held a hearing and issued a decision on August 5, 2013. The Agency
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subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

During the relevant time period (early 2012), Complainant had been working in a limited duty
capacity for an extended period of time. The evidence reveals that although Complainant's
doctor had limited her to working up to six hours a day due to her medical condition,
Complainant had requested to work additional hours.
AJ’S FACTUAL FINDINGS
1 Higher level management in San
Antonio, Texas instructed the Alice Post Office management to grant Complainant's request to
work beyond the number of hours restricted by her doctor. Such additional hours granted to
Complainant came from outside her craft. This resulted in union grievances filed against the
Alice Post Office management for violation of the collective bargaining rules prohibiting
employees from working outside their craft.2

In January 2012, a new Postmaster (P1) started at the Alice Post Office. P1 replaced the
Officer-in-Charge (OIC2) and was expected to turn around the failing post office. P1 was
introduced to the staff by the delivery supervisor (S1) who retired shortly after P1 came on
board. In the first days of his tenure, P1 conducted a brief stand-up presentation and explained
that he was there to make observations and determine what changes he wanted to make. In
addition, he announced that he was going to be looking to fill the position of a 204-B
supervisor (204-B). Shortly after this announcement, Complainant approached P1 to tell him
that she was interested in the 204-B position. In addition to Complainant, P1 learned that
another City Carrier (C1) was also interested in the 204-B position. However, P1 testified that
within a short period of time he came to the opinion that Complainant was not a good fit for
the 204-B position due to the unprofessional manner in which she conducted herself at work.
P1 also testified that he learned that C1 had a poor attendance record so he was not inclined to
select her for the position either.

Complainant presented the testimony of her union representative (U1) in support of her claims.
At the hearing, U1 explained that he had previously represented Complainant in various
grievances and other matters against the Agency.3

According to U1's testimony, he had a
conversation with P1 wherein P1 allegedly informed him that he would not consider
Complainant for the position of 204-B because of her limitations and her restricted work
schedule. However, P1 categorically denies having this conversation with U1.

1 At the time, Complainant had physical restrictions that included a five-pound continuous
lifting restriction; ten-pound intermittent lifting restriction; and a six-hour restriction on
functions such as sitting, standing, walking, climbing, kneeling, bending/stooping, twisting,
pulling/pushing, simple grasping, time manipulation, reaching above shoulder, and driving.
2 When a person is permitted to work outside their own craft they often take overtime work
from those permanently assigned to the craft.
3 At the time of the hearing, U1 was retired from the Post Office.
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The AJ notes in her decision that while U1 seemed pretty adamant in his assertion that P1
made the statement alleged, he also explained that it had been a long time since the
conversation took place and he was not really clear about what P1 had specifically said. After
assessing all of the testimony and other evidence in the record, the AJ concluded that it did not
seem probable that P1 made the statement alleged by U1. The AJ found P1 was a professional
with enough management experience to realize that it would be highly inappropriate for him to
tell a union representative that he would not use an employee because of that employee's work
restrictions.

In addition, the AJ notes that OIC2 testified that P1 told him that he did not think Complainant
would be a good candidate for the 204-B position because she used vulgar language, which
added credibility to P1’s testimony. The AJ also notes that the Officer-in-Charge at the Alice
Post Office in 2010 to early 2011 (OIC1) also agreed and testified that a 204-B supervisor has
to be tactful and have the respect of employees. Accordingly, the AJ found that OIC1’s
testimony also added credibility to P1’s articulated non-discriminatory reason for not selecting
Complainant for the 204-B position.

The AJ also found P1's testimony to be “very credible” in explaining the reasons why he did
not put Complainant in the 204-B position. According to P1, since a 204-B supervisor would
at times serve in the capacity of Postmaster or Officer-in-Charge, it was important to him that
the individual serving as a 204-B supervisor act professionally, be able to appropriately
manage people and have professional interaction with other staff members. The AJ notes that
the record supports P1’s testimony that when he learned Complainant and C1 were both
interested in the 204-B position, he reviewed their applications. P1 testified that he first
looked at C1's record and immediately determined that he would not consider her for the
position because she had a poor attendance record that was not related to any disability or
Family and Medical Leave Act issue.

P1 also testified that he then considered Complainant for the 204-B position. P1 indicated that
he reviewed Complainant’s file, and discovered in part, a letter of warning and a former
grievance against OIC1.4

Complainant asserts that this information should not have been
maintained in her file and her general contention was that having inappropriately obtained
knowledge of her prior grievance against OIC1, P1 then retaliated against her for her prior
EEO activity when he did not place her in the 204-B supervisor position. The AJ concludes
that even assuming that Complainant is correct in her assertion that it was inappropriate for
management to retain information regarding her discipline and/or grievances, the evidence did
not support a showing that P1's knowledge of the grievance was a contributing factor in his
decision not to place Complainant in the 204-B supervisor detail.

4 The grievance Complainant filed against OIC1 was based on disciplinary action that OIC1
initiated against Complainant because she told OIC1, "off the record, you suck." Complainant
does not deny making the statement to OIC1.
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The AJ further concluded that P1 gave convincing testimony when he explained why he did not
think that Complainant was a good fit for the 204-B supervisor position. Additionally, the AJ
concludes that P1 gave compelling testimony when explaining the basis for his decision.
Specifically, the AJ notes that P1 testified that during the first few days of his arrival at the
Alice Post Office Complainant stood out from among the staff but not in a positive way. In
addition, the AJ notes that P1 testified that Complainant was loud, that she used vulgar
language and addressed her coworkers and him using slang terms. In addition, P1 testified that
at the very beginning of his tenure, Complainant came up to him when he was standing next to
the copy machine and poked him in the stomach. P1 testified that he was surprised by
Complainant's action and that she simply stated, "Oh, I just wanted to see how you reacted."
The AJ notes that another example P1 gave in support of his belief that Complainant was not a
good fit for the 204-B supervisor position was that he observed and heard Complainant
addressing co-workers as "ese," a slang term generally meaning "hey, dude" and that further,
Complainant addressed P1 as "dude." After P1 told Complainant that he "was not her 'dude,'"
Complainant asked if she should refer to him as "el jefe" meaning "the boss."

The AJ concluded that while Complainant insisted that this was the way everyone at the Alice
Post Office spoke, it was not surprising that P1 did not appreciate the way Complainant
addressed him. The AJ also notes that Complainant pointed out that P1 had never spoken to
her directly about any concerns he may have had about her language or conduct and asserts
that the entire Alice Post Office workforce comported themselves in much the same way. The
AJ notes that P1 reasonably explained that he addressed his concerns about Complainant with
her direct supervisor (S1) and expected him to address those concerns directly with her. P1
testified that he did not deal with Complainant directly because he wanted to give S1 an
opportunity to get a handle on the situation. Moreover, P1 believed that it was more
appropriate for the first-line supervisor to speak with the staff regarding such matters. The AJ
notes that OIC1 also testified that this approach was appropriate.

The AJ further noted that Complainant made general assertions throughout the hearing that P1
did not put her in the 204-B position because of her disability and her limitations related to her
injury and because she previously raised complaint against OIC1 and OIC2. The AJ notes that
in response to Complainant’s assertions, P1 credibly testified that he thought Complainant
could do the job of 204-B supervisor, but based on his observations of how she comported
herself with other employees, he did not think Complainant would have the respect from her
coworkers and that was why he did not think Complainant was a good fit for the job.5

5 The AJ notes that P1 explained that an additional factor he considered when determining that
Complainant was not a good fit for the 204-B position was the fact that a dispute between
Complainant and another employee resulted in the change of Complainant’s start time by a few
minutes to avoid the possibility that she and the other employee would have contact when
punching in at the time-clock. Another factor considered by P1 was his observances of
Complainant acting unprofessionally when she rudely yelled out to a custodian (C2) to load up
her truck, since C2 was designated as the individual responsible for accommodating
Complainant’s physical restrictions by carrying her mail tray to her vehicle. Moreover, the AJ

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The AJ also concluded that Complainant's conduct at the hearing diminished her credibility.
Specifically, the AJ notes that when Complainant was not testifying, her demeanor was much
more relaxed. The AJ watched Complainant “fooling around with her chair, spinning and
jerking the chair up and down.” The AJ concluded that Complainant gave the appearance that
she was faking or exaggerating her injuries because her own actions gave no indication that she
had any physical restrictions. However, the AJ notes that when Complainant was seated in the
witness stand she acted very stiff and appeared to be trying to give the impression that it hurt
to move. The AJ concluded that Complainant's actions “didn't seem to mesh with her
claims.”

The AJ concluded that since she found P1’s testimony credible and supported by the weight of
the evidence in the record, and because Complainant has not provided the evidence necessary
to support her claim of disability and retaliation discrimination, she issued a decision in favor
of the Agency.

ARGUMENTS ON APPEAL
On appeal, Complainant asserts that the AJ ignored the direct evidence of disability
discrimination provided by the testimony of both Complainant and U1 (i.e., both testified that
P1 told U1 that he did not want to select Complainant for the 204-B position because of her
limitations and restricted hours). In addition, Complainant asserts that the record supports the
conclusion that OIC1 was influential in P1’s decision-making process. Complainant asserts
that not only did OIC1 agree that P1 should not select Complainant, he maintained a file on
Complainant that incorrectly led P1 to believe that there was a Letter of Warning issued to
Complainant (as opposed to an Official Discussion) for telling OIC1 that he “sucked.”

Complainant also asserts that P1 is not credible because S1 never addressed her conduct or
language with her. In addition, Complainant argues that P1 is not credible because a lot of his
hearing testimony was not revealed in his written answers to interrogatories. Lastly,
Complainant asserts that P1’s belief that it was possible that Complainant was exaggerating her
injuries supports a finding that he held discriminatory and retaliatory motives.

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.”

notes that P1 also found it unprofessional that Complainant lit a cigarette and was smoking on
the dock while C2 loaded up her vehicle.
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Universal Camera Corp. v. National Labor Relations Board, 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

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
Upon review of the entire case file, including the testimony of each witness at the hearing, we
find substantial evidence in the record to support the AJ’s findings and conclusions. We note
that the “direct evidence” alleged by U1 was not found credible by the AJ. With respect to
OIC1’s influence over P1, we find that even assuming the truth of such assertion, nothing was
presented to establish discriminatory or retaliatory motives on the part of OIC1, or any other
management official. In addition, even assuming that P1’s hearing testimony introduced more
information in support of his non-selection decision than what was mentioned in his
interrogatory answers, his statements and testimony did not appear contradictory. Lastly, we
find that P1’s statements that Complainant may have been exaggerating her physical
restrictions, insufficient under the facts herein to establish discriminatory or retaliatory
motives. We note that the AJ also had a similar impression of Complainant based upon her
conduct during the hearing.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final order which adopts the AJ’s finding that Complainant failed to
establish disability discrimination or retaliation as alleged.

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.

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Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision 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
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
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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 17, 2015