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

Equal Employment Opportunity Commission

Mar 19, 2015

0120130798 (E.E.O.C. Mar. 19, 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. 0120130798

Agency No. 1G-761-0023-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
November 21, 2012 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Processing and Distribution Center in Fort Worth, Texas. In November 2011,
Complainant informed management that she had cancer and needed surgery. Complainant
claims that between November 3, 2011 and November 8, 2011, she was repeatedly asked to
re-do her leave requests for surgery. Complainant claims that her manager (M1) denied her
requests and told her several times to re-submit until her sixth and seventh attempts were
finally put into the system. Complainant went out on leave for the surgery and returned to
work on November 17, 2011. Complainant requested temporary light duty; however, M1
denied her request because there was no work available within her restrictions. Complainant
claims that she later learned that the light duty request and the denial paperwork had never
been “filed.” Complainant returned to full duty on December 1, 2011.

On December 2, 2011, Complainant submitted a request to receive donated leave.
Complainant was approved for donated leave on December 20, 2011. Complainant claims that
on December 30, 2011, M1 advised her that her donated leave case number was going to be
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revoked because she did not qualify. Complainant contacted the Plant Manager and a Human
Resources Representative and learned that she was still eligible. On January 4, 2012, a notice
was posted notifying employees they could donate leave to her.

On March 1, 2012, Complainant’s supervisor (S1) conducted an investigative interview with
Complainant regarding her unsatisfactory attendance. Complainant admitted that she was
absent the days in question; however, she claimed that the absences were not unscheduled. On
March 8, 2012, S1 issued Complainant a Notice of 7-Day No Time-Off Suspension for
continued unsatisfactory attendance.

Complainant claims that M1 “shadowed” her on March 23, 2012, by working on a machine
within 10 feet of her. Complainant states that she reminded M1 that she was leaving early for
a doctor’s appointment and M1 went to talk to the Acting Supervisor (AS). AS returned later
and requested that Complainant bring back a note documenting her arrival and departure time
from her appointment.

On April 13, 2012, Complainant claims that she became ill at work. Complainant states that
her doctor told her to stay out of public places including work until she came in for an
appointment. Complainant claims that AS initially signed her leave slip and indicated that
documentation was needed; however, AS later wrote on the form that the request was denied.
Complainant states that she was only told that she was needed as scheduled.

On April 23, 2012, S1 placed Complainant on restricted sick leave. Complainant states that
she was told that it was based on her numerous absences; however, Complainant contends that
she had proper medical documentation for each of her absences. On May 31, 2012, S1 held an
investigative interview with Complainant regarding her repeated attendance issues. On June
20, 2012, S1 issued Complainant a 14-Day Suspension for her continued failure to be regular
in attendance.

On June 28, 2012, Complainant became aware that someone volunteered her to work on her
off day on July 3, 2012. Complainant claims that when she informed her supervisor (S2) of
the error, S2 told her to submit to complete a Form 13 to submit documentation of the
appointment on the next work day. Complainant states she gave the Form 13 to M1 and was
then also required to provide documentation of her medical appointment scheduled on her day
off.

On March 29, 2012 (and amended multiple times), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (Caucasian), national origin (Native
American/Spanish/Slovenian/Polish/Irish), sex (female), religion (Catholic), color (White),
disability, and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, she was repeatedly required to re-do her request for leave regarding her
surgery; her request for temporary light duty was denied; she was advised she was being
removed from the Leave Sharing; she was issued a Notice of 7-Day (No-Time-Off) Suspension
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for Continued Unsatisfactory Attendance; her light duty request and the denial paperwork was
never “filed;” she was “shadowed” by the manager for an hour and fifteen minutes, and then
the manager instructed the supervisor to give her more detailed requirements for her doctor's
note, prior to leaving early for her appointment; she was threatened with being charged with
disobeying a direct order; her sick leave request was disapproved; she was placed on restricted
sick leave; she was given an investigatory interview and subsequently a 14-Day Suspension;
and she informed management of a schedule error and she was instructed to provide
documentation for her medical appointment.1

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. When Complainant did not respond within the timeframe provided in
29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to her November 2011 request for leave for her
surgery, AS denied that Complainant was repeatedly required to re-do her leave requests. AS
stated that Complainant did not have sufficient leave balances to be granted the requested leave
so a Form 3971 had to be generated for Leave Without Pay (LWOP) and another for Sick
Leave Without Pay (SLWOP). M1 requested that Complainant re-do her leave request because
the system would only allow the input of leave that an employee currently had.

With respect to her temporary light duty request, AS stated that Complainant requested light
duty for two weeks. AS affirmed that she reviewed Complainant’s documentation and
determined that there was no work available within Complainant’s restrictions. AS conferred
with M1, and M1 ultimately denied Complainant’s light duty request based on no available
work. Regarding Complainant’s leave sharing claim, M1 denied advising Complainant that
she would be removed from the program. M1 noted that Complainant was never removed
from the leave sharing program.

As to the 7-Day No Time-Off Suspension, M1 averred that even prior to Complainant’s
illness, she had poor attendance. S1 conducted an investigative interview and ultimately issued
Complainant the suspension for continued unsatisfactory attendance, with which M1
concurred.

With respect to her light duty paperwork, AS affirmed that Complainant’s paperwork was on
file. As to being shadowed and instructed to give more detailed doctor’s documentation on
March 23, 2012, M1 denied shadowing Complainant, and AS stated that Complainant was not
required to submit more detailed documentation. Likewise, management denied threatening

1 The Agency dismissed two additional claims for failure to state a claim. Complainant raised
no challenges to the dismissal of these claims on appeal; therefore, the Commission will not
address them in this decision.
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Complainant with discipline if she did not return a leave slip. No management official could
recall involvement in the denial of her April 13, 2012 leave request.

As to being placed on restricted sick leave and the subsequent 14-Day Suspension, S1 stated
that during the year she supervised Complainant, she habitually called in sick almost weekly in
conjunction with her days off. Based on Complainant’s continued attendance deficiencies, S1
decided to place Complainant on restricted sick leave. S1 stated that Complainant’s attendance
continued to be deficient. As a result, S1 (with M1’s concurrence) issued Complainant a 14-
Day Suspension.

Finally, regarding the July 3, 2012 scheduling error, S1 stated that S2 placed the mail handlers
on the holiday schedule by seniority. S2 explained that if an employee was unavailable to sign
“yes” or “no” as a volunteer to work the holiday or overtime, that employee was documented
as a “yes” until they returned to duty and notified management that they did not volunteer.
After S2 completed the schedule, Complainant informed her that she had not volunteered, and
S2 requested documentation. Complainant provided the requested documentation.

The Agency concluded that Complainant failed to show that any of management’s actions were
based on discriminatory or retaliatory animus. Further, the Agency found that Complainant
failed to show that management’s reasons for its actions were pretextual. As a result, the
Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile
work environment as alleged. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
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., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris

, 510 U.S. at 22 (1993).
Here, Complainant asserted that based on her protected classes, she was subjected to a hostile
work environment. Complainant has cited numerous incidents where Agency management
took actions which seemed adverse or disruptive to her. The Commission finds, however, that
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Complainant has not shown that she was subjected to discriminatory or retaliatory hostile work
environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that any of the alleged incidents were based on
discriminatory or retaliatory animus. For example, management stated that Complainant was
required to re-submit her leave requests prior to her surgery in November 2011, because she
did not have sufficient leave for the type she requested. ROI, at 341. As a result, she was told
to submit leave slips for both sick leave and SLWOP. Id. In addition, management was
unable to approve Complainant’s request for temporary light duty because there was no work
available within her restrictions. Id

. at 78. There is no evidence that Complainant’s light duty
paperwork was not filed or processed. Likewise, there is no evidence that Complainant was
removed or threatened to be removed from the donated leave sharing program.
Regarding her April 23, 2012 sick leave request, the record reveals that it was disapproved
based on the need for Complainant to work as scheduled. ROI, Ex. 9. As to her placement on
restricted sick leave, S1 stated that she did so based on Complainant’s habitual attendance
deficiencies. ROI, at 407. S1 maintained that Complainant had a pattern of calling in sick
almost weekly in conjunction with her days off. Id

. With regard to the 7-Day (No Time-Off)
and 14-Day Suspensions, the record indicates that management issued these disciplinary actions
after Complainant continued to be irregular in attendance. ROI, Exs. 8, 12. Complainant did
not dispute that she was absent on the days cited in the Notices. Both suspensions were based
on progressive discipline. Finally, with respect to the July 3, 2012 holiday schedule,
Complainant was documented as a volunteer to work on the holiday schedule until she returned
to work and advised management she did not volunteer to work. S1 noted that Complainant
was required to provide documentation and had been placed on sick leave restriction based on
her irregular attendance. ROI, at 417.
As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that Complainant failed to present any evidence that discriminatory or
retaliatory animus motivated the incidents at issue. 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.
Accordingly, the Commission finds that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.

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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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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.
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
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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 19, 2015