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

Equal Employment Opportunity Commission

Mar 25, 2015

0120132386 (E.E.O.C. Mar. 25, 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
(Southwest Area),
Agency.

Appeal No. 0120132386

Hearing No. 460-2011-00022X

Agency No. 4G-770-0374-09

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s April 25, 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 Rural Carrier at
the Agency’s East Houston Station in East Houston, Texas. On June 20 and 27, 2009,
Complainant failed to report to work as scheduled, and did not contact management to report
her absences. As a result, Complainant was charged with 16 hours of absence without leave
(AWOL). On July 24, 2009, Complainant requested annual leave for July 25, 2009.
Complainant’s request was denied, but she failed to report to work as scheduled and failed to
contact management to report her absence. On July 29, 2009, Complainant’s supervisor (S1)
conducted a pre-disciplinary interview with Complainant and her union steward regarding her
absences. On August 26, 2009, S1 issued Complainant a Notice of Removal for
Unsatisfactory Attendance (AWOL). Complainant was placed on administrative leave for 30
days while the Notice of Removal was pending. Complainant subsequently filed a grievance
regarding the removal, and it was reduced to a 14-Day Suspension.

On May 26, 2010, the Acting Supervisor (AS) instructed Complainant to return to her case,
pull down her route, and take the route to the street. Complainant responded by yelling at AS
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“You can’t tell me what to do, I’m going back to my route when I’m ready!” AS called
Complainant into the office for a pre-disciplinary interview. When AS started talking,
Complainant walked out of the office. As a result, AS placed Complainant off the clock for
failure to follow instructions.

Around late-May 2010/early-June 2010, Complainant reported to the Customer Service
Operations Manager (M1) that AS had made inappropriate comments to her. Based on
Complainant’s allegations, M1 moved AS to the Cornerstone Station pending results of an
investigation into the matter.

Complainant claims that the Station Manager (SM) continuously harassed her. On May 5,
2010, while filling out leave forms and talking with a supervisor, Complainant alleges that SM
told her to exit the workroom floor because she was not on the clock. Complainant claims that
SM would sit at her case and observe her. In addition, Complainant alleges that she was not
paid for all of her steward time and not paid for mileage while acting as an EEO
representative.

On January 19, 2010 (and twice amended), Complainant filed an EEO complaint alleging that
the Agency discriminated against her and subjected her to a hostile work environment on the
bases of sex (female) and in reprisal for prior protected EEO activity as evidenced by multiple
incidents including, inter alia, she was issued a Notice of Removal; while she was placed in a
non-working status pending removal, she was not compensated at the proper rate; AS told her
that he was “the man” and “stood on both his legs” and since Complainant came to him the
“wrong way” he was going to make it his duty to watch her; AS told Complainant that she was
“spicy enough” and came to her case approximately 10-12 times per day; and she had not been
paid mileage for travel to and from other offices while acting as an EEO representative.

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 EEOC
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 April 15,
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 conduct was based on discriminatory or retaliatory animus.
Specifically, S1 issued Complainant a Notice of Removal due to her blatant defiance of the
Agency’s attendance policy. Complainant was placed on paid administrative leave during the
30 days while the removal was pending. While off the clock, the code for administrative leave
was inputted into the Agency's computerized time and attendance system. The system
calculated the leave payment, and Complainant was paid for a regular work week for the route.
Subsequently, Complainant filed a grievance and the removal was reduced to a 14-Day
Suspension.
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With respect to the May 26, 2010 incident, the AJ determined that the record was undisputed
that Complainant defied AS’s instructions to return to her case, yelled at him, and then walked
out of a pre-disciplinary meeting. AS recommended and SM concurred that Complainant be
placed off the clock for the remainder of the workday due to her behavior.

Regarding Complainant’s claims that SM harassed her, the AJ found that there was no dispute
that SM instructed Complainant to exit the workroom floor because she was not on the clock.
Further, while there was disagreement between SM and Complainant regarding steward time,
Complainant was paid for that time. Complainant was not compensated immediately for some
of her mileage while acting as an EEO representative because she did not have an ID for the
Agency’s e-Travel system. SM submitted a request for and received an ID for Complainant to
access the system. Finally, Complainant was often away from her case; therefore, SM would
sit at her case and observe Complainant.

Lastly, as to Complainant’s sexual harassment claims, the AJ found that Complainant failed to
demonstrate that the AS’s alleged harassment complained of was based on her sex and that the
alleged comments were sufficiently severe to render her work environment objectively hostile
or abusive. Additionally, the record showed that the incidents were not pervasive, but were
limited to approximately a two-week time period from mid to late-May 2010. Moreover, M1
promptly removed AS from the station pending investigation of the claims when she received
Complainant’s report of AS’s comments. The AJ noted that Complainant confirmed that no
further harassment occurred. As a result, the AJ concluded 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 contends that evidence shows that she was subjected to a sexual and
retaliatory hostile work environment. Complainant argues that she was not given time to
conduct her own investigation or interview witnesses. Complainant claims that management
has tried to bring AS back to the station and she does not feel comfortable in his presence.
Complainant argues that many prior EEOC decisions support a finding of discrimination in her
complaint. Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS
Adequacy of the Investigation

As an initial matter, the Commission notes that Complainant claims on appeal that the
investigation of her complaint was incomplete. Upon review of the entire record, the
Commission is not persuaded that the investigation into Complainant's complaint was improper
or incomplete. Complainant has not presented any evidence of impropriety in the processing
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of her complaint, and there is no evidence that Complainant raised any concerns or attempted
to cure any alleged defects in the record while the complaint was before the AJ. Thus, despite
the above referenced arguments, the Commission determines that the investigation was
properly conducted.

Hostile Work Environment

Turning to the merits of the instant complaint, 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.
(citing
,
EEOC Appeal No. 01972699 (Aug. 14, 1998) McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)); EEOC 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. ; 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.”
, 510 U.S. 17, 21 (1993)
Harris
.
, 510 U.S. at 22
(1993)

To establish a claim of harassment, Complainant must show that: (1) she is a member of 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. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16. 1998); 29 C.F.R. § 1604.11. 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, 510 U.S. at 21. 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) (Enforcement Guidance on Harris

).
In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
she was subjected to a hostile work environment as evidenced by multiple incidents.
Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown she was subjected to a hostile work environment.

In many instances, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. For example, S1 issued the Notice of Removal after
Complainant failed to report to work as scheduled, failed to contact management to report her
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absences, and failed to provide documentation in support of her absences on three occasions in
June and July 2009. ROI, at 50. S1 considered Complainant’s prior disciplinary record in
issuing the discipline. Id. at 81. As a result, S1 issued Complainant a Notice of Removal for
Unsatisfactory Attendance (AWOL). The removal was later reduced to a suspension. Further,
S1 maintained that Complainant was placed on administrative leave pending the removal and
her hours were automatically computed correctly by the Agency’s time and attendance system.
Id

. at 257.
With respect to the May 26, 2010 incident, AS stated that he instructed Complainant to return
to her case and Complainant responded by yelling at him. ROI, at 267. AS attempted to
conduct a pre-disciplinary interview with Complainant regarding the incident; however, AS
asserted that she walked out. Id. Based on her conduct, AS (with SM’s concurrence) placed
Complainant in an off-duty status. Id

. at 225, 267.
As to the incidents involving SM, SM confirmed that she told Complainant to exit the
workroom floor because she was not on the clock. ROI, at 200. Further, SM stated that
Complainant initially was not reimbursed for her travel while acting as an EEO representative
because she did not have ID to utilize the system. Id. at 219. SM confirmed that she
requested an ID for Complainant, and at that time, management was working on getting her
reimbursement approved. Id

. 220-22.
Finally, with respect to Complainant’s allegation of sexual harassment, Complainant alleged
that AS made several inappropriate comments and frequently made trips to her case over the
course of two weeks. The Commission notes that a single incident or group of isolated
incidents will generally not be regarded as discriminatory harassment unless the conduct is
severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Here, the
Commission concurs with the AJ's determination that, even taken as true, the incidents alleged
are not sufficiently severe or pervasive as to rise to the level of objectively unreasonable
behavior that would trigger a violation of Title VII. The Commission further notes that after
Complainant reported AS’s alleged conduct, M1 immediately referred the matter to the Human
Resources Manager for a full investigation and moved AS to the Cornerstone Station pending
the results of the investigation. ROI, at 282-83. Complainant confirmed that no further
harassment occurred. Id

. at 153.
The Commission concurs with the AJ's determination that, even when viewing all of the
alleged incidents and evidence in the light most favorable to Complainant, the record does not
show that the Agency subjected Complainant to a discriminatory or retaliatory hostile work
environment. Finally, to the extent that Complainant is alleging disparate treatment with
respect to her claims, the Commission finds that she has not shown that the Agency’s reasons
for its actions were a pretext for unlawful discrimination or reprisal. Accordingly, 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.

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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 Agency's final order, because the 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

(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
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.
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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
March 25, 2015