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

Equal Employment Opportunity Commission

Sep 11, 2015

01-2013-3400-0500 (E.E.O.C. Sep. 11, 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. 0120133400

Hearing No. 420-2013-00103X

Agency No. 1G-366-0009-12

DECISION

On September 18, 2013, Complainant filed an appeal from the Agency’s September 5, 2013,
notice of final action 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. For the following reasons, the Commission AFFIRMS
the Agency’s notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee (PSE) in the Mobile Processing and Distribution Center (P&DC) in Mobile,
Alabama. Person A was the Acting Manager at the Mobile Annex beginning in June 2012.

Person A stated that he gave Complainant an official discussion the night of July 5, 2012, for
failure to follow instructions when he told her to throw off a parcel and she refused to do so.
Person A stated he told Complainant if she would not follow his instructions, she should go
home and not return until he sent her a letter or called her. Complainant stated she clocked out
and then made an attempt to resolve the differences between her and Coworker X which led to
a physical altercation.

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On July 6, 2012, Complainant was notified that based on her involvement in this physical
confrontation with Coworker X, she was being placed in an off-duty status without pay.
Thereafter, an investigation was conducted of the July 5, 2012 incident.

Following completion of the investigation, Person B issued the Notice of Removal to
Complainant on August 6, 2012, for inappropriate conduct related to her altercation with
Coworker X on July 5, 2012. The Notice of Removal stated that although there were some
discrepancies in Complainant’s statement of what happened and those of the witnesses, it was
determined from the investigation that the altercation became physical when Complainant
started hitting Coworker X in the face. The Notice of Removal also charged Complainant with
a failure to follow instructions when she failed to maintain the behavior management required
of its employees. The Plant Manager of the Mobile P&DC was the concurring official in
Complainant's removal.

The record reveals that Coworker X was issued a Notice of 14-Day Suspension for
inappropriate conduct and failure to follow instructions related to her altercation with
Complainant on July 5, 2012. The Notice stated that although the investigation revealed that
Complainant initiated the physical contact with Coworker X, other witness statements
corroborated that Coworker X made verbal comments towards Complainant that were
inappropriate in the workplace.

Complainant first initiated EEO Counselor contact on July 6, 2012. On September 25, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against her in
reprisal for protected EEO activity when:

Complainant received a Notice of Removal dated August 6, 2012, charging her with
Improper Conduct and Failure to Follow Instructions.

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.
The Agency filed a motion for summary judgment. Complainant did not respond. The AJ
assigned to the case granted the Agency’s motion for a decision without a hearing and issued a
decision without a hearing on August 28, 2013.

In her decision, the AJ noted that upon review of the report of investigation, Complainant also
alleged that management subjected her to a hostile work environment by failing to address her
concerns about workplace bullying and harassment. Specifically, the AJ noted that
Complainant stated that she was ridiculed, provoked, and harassed by coworkers, yet
management did not take sufficient action to remedy the situation. Thus, the AJ addressed the
harassment allegations in her decision.

With regard to her harassment claim, the AJ found Complainant had not demonstrated that the
harassment occurred because of any protected basis. The AJ found the record portrayed an
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antagonistic relationship between Complainant and two of her coworkers that appeared to be
the result of personality conflicts, rather than discrimination.

With regard to the notice of removal, the AJ found Complainant did not establish a prima facie
case of reprisal discrimination. Moreover, the AJ found the Agency articulated legitimate,
nondiscriminatory reasons for Complainant’s termination, i.e., when on July 5, 2012, she
became involved in a physical altercation with a co-worker. The AJ also found Complainant
did not meet her burden of establishing that the articulated reasons for her termination were
pretexts for unlawful reprisal.

The Agency subsequently issued a notice of final action on September 5, 2013. The Agency’s
final action fully implemented the AJ’s finding that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 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”).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no disputes of material fact. We note that Complainant does not challenge the definition of the
issues in her complaint on appeal.

With regard to her harassment claim, Complainant states that management continuously
subjected her to a hostile work environment by not addressing her concerns about being bullied
and provoked in the workplace. However, there is no indication that Complainant perceived
this behavior to be based on any protected characteristic. Since Complainant has not
demonstrated that the harassment occurred because of any protected basis, she has failed to
prove that she was subjected to a discriminatory hostile work environment for which the
Agency is liable.

With regard to her claim of retaliation, we note there is no evidence that Complainant initiated
any EEO activity prior to the initiation of EEO Counselor contact with regard to the present
complaint on July 6, 2012. Furthermore, Complainant has not established that the decision
makers, Person B or the Plant Manager were aware of her informal EEO contact made on July
6, 2012, at the time the decision was made to terminate her from employment. Finally, we
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find the Agency articulated a legitimate, nondiscriminatory reason for Complainant’s
termination, i.e., when on July 5, 2012, she became involved in a physical altercation with a
co-worker. Upon review, we find Complainant failed to show that the Agency’s action was a
pretext for retaliation.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
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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 (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

September 11, 2015
Date