Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Feb 20, 2015

0120123413 (E.E.O.C. Feb. 20, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120123413

Agency No. 4G-335-0044-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 23, 2012 final Agency 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. 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 Sales,
Service/Distribution Clerk at the Agency’s Post Office in Bonita Springs, Florida. On August
11, 2011 (and amended on October 22, 2011), Complainant filed an EEO complaint alleging
that the Agency discriminated against her and subjected her to a hostile work environment on
the bases of race (African-American), sex (female), color (Brown), disability, and in reprisal
for prior protected EEO activity as evidenced by multiple incidents including, inter alia, on an
almost daily basis she was treated poorly and assigned the majority of the tasks; she was given
vicious looks and subjected to racial slurs; she was issued a Seven-Day Suspension for
Continued Unsatisfactory Attendance/Absent Without Official Leave (AWOL) Tardiness; she
was allowed to make up the time after calling in late on one occasion, but she was later called
in for an investigative interview; she was issued a 14-Day Suspension for Continued
Unsatisfactory Attendance/Absent Without Official Leave Tardiness; and she was harassed,
embarrassed, yelled at, and belittled by her supervisor regarding her work assignment of
clearing the carriers.

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On December 5, 2011, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(7) for failure to cooperate. The Agency noted that Complainant failed to
provide an affidavit in support of her complaint. Complainant appealed, and, in Complainant
v. U.S. Postal Serv.

, EEOC Appeal No. 0120121104 (May 22, 2012), the Commission
reversed the Agency’s dismissal and remanded the complaint for further processing. 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 time frame 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. In particular, Complainant’s supervisor (S1) affirmed that Complainant
was not treated poorly. S1 explained that the tasks that Complainant complained of were part
of her job description. In addition, S1 advised that all employees were required to distribute
mail, sell at the window and dispatch mail, and Complainant was not asked to do anything that
any other clerk had not done or did. S1 stated that Complainant did not empty the trucks with
incoming mail in the morning or do the first dispatch at 1:30 p.m., but she was assigned the
4:30 and 5:00 p.m. dispatch because that is what her bid job was created for. In addition, S1,
the Postmaster, and a second supervisor (S2) denied giving Complainant vicious looks or using
racial slurs.

As to the Seven-Day Suspension, S1 stated that she issued it because Complainant had not been
regular in attendance. S2 noted that this discipline was progressive. With respect to the June
6, 2011 tardy incident, the Postmaster stated that Complainant reported to work late and told
her that she overslept because her daughter kept her up all night. When Complainant arrived,
she asked if she could make up the time. The Postmaster agreed so that Complainant would
not lose the time/pay. The Postmaster maintained, however, that making up the time did not
mean that Complainant was not late when she failed to report at the start of her scheduled tour
time. S1 decided to give Complainant an investigative interview for again not being regular in
attendance. On August 1, 2011, S1 issued Complainant a 14-Day Suspension for not being
regular in attendance.

Finally, S1 denied harassing, embarrassing, yelling at, or belittling Complainant regarding her
assignment of clearing the carriers. S1 confirmed that clearing the carriers was a part of
Complainant’s duties. She explained that clearing the carriers meant taking keys and
accountable items from the carriers, putting them away, and signing off on an accountable log.
S1 explained that Complainant came to the office and sarcastically asked a co-worker if he was
allowed to clear carriers. S1 told Complainant that the task was part of her job, and
Complainant then called the police.

The Agency determined that there was no evidence that the alleged incidents were based on
discriminatory or retaliatory animus. Further, the Agency concluded that Complainant failed
to show that management’s reasons for its actions were pretextual. As a result, the Agency
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found that Complainant had not been subjected to discrimination, reprisal, or a hostile work
environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant states that she disputes everything in the FAD. Further, Complainant
provides a list of witnesses who would support her complaint. Accordingly, Complainant
requests that the Commission reverse the FAD.

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 several incidents where Agency management
allegedly took actions which seemed adverse or disruptive to her including, inter alia, poor
treatment in regard to assignments, vicious looks, and racial slurs; being issued Seven-Day and
14-Day Suspensions; and being yelled at and belittled regarding her assignment of clearing the
carriers. The Commission finds that 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. In particular, as to her work assignments, S1 confirmed
that the tasks of which Complainant complained were clerk tasks and part of her job
description. ROI, at 182. S1 added that Complainant performed the same tasks any other
clerk would do. Id. at 183. The Commission notes that Complainant provided no specific
incidents or evidence in support of her claim that she was subjected to vicious looks and racial
slurs. Nonetheless, S1 (and other management officials) all denied subjecting Complainant to
vicious looks or racial slurs or being aware that Complainant had been subjected to such
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conduct. Id. at 183, 210, 224. The Postmaster stated that she has an open-door policy and
Complainant has never raised any issues with her. Id

. at 224.
With respect to the suspensions and discipline, management stated that they took action based
on Complainant’s repeated failure to be regular in attendance. Complainant was first issued a
Seven-Day Suspension after she incurred at least 20 instances of unsatisfactory attendance and
tardiness. ROI, Ex. 3. Complainant had previously been issued a Letter of Warning for
Continued Unsatisfactory Attendance. Id. As a result, Complainant was issued a Seven-Day
Suspension on March 21, 2011. Complainant was tardy on June 6, 2011, and the Postmaster
confirmed that she told Complainant that she could make up the time after reporting to work
late so that she would not lose time or pay. ROI, at 213. The Postmaster maintained that
making up the time did not mean that she was excused from being late for the start of her
scheduled tour. Id. Complainant was given an investigative interview on June 8, 2011, to
discuss her continued attendance and tardiness issues. Id. at 187; ROI, Ex. 6. On August 1,
2011, Complainant was issued a 14-Day Suspension for again not being regular in attendance.
Id

. at 188; ROI, Ex. 6.
Finally, S1 stated that clearing the carriers was part of Complainant’s duties. ROI, at 201.
The record indicates that Complainant initially made sarcastic comments to another employee
about clearing the carriers, and S1 asked Complainant why she confronted the employee rather
than completing her duties. ROI, Ex. 10. Complainant believed that S1 was belittling her and
ultimately called the police. Id

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 his 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 that Complainant was not subjected to
discrimination, reprisal, or a hostile work environment as alleged.
. A Threat/Assault Incident Investigation was conducted;
however, there is no evidence that Complainant was disciplined for the incident.

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.

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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
February 20, 2015