Julietta K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 24, 2017

0120150177 (E.E.O.C. Mar. 24, 2017)

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

Julietta K.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 0120150177

Agency No. 4G-320-0028-14

DECISION

On October 17, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s September 17, 2014, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier
Assistant at the Agency’s North Augusta Post Office in North Augusta, South Carolina.

On February 15, 2014, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her and subjected her to harassment on the basis of her race
(African-American) when:

1. On October 12, 2013, Complainant learned that the work hours/assignments were
not fairly distributed when she worked at the North Augusta facility from June 15 –
October 23, 2013;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. On September 27, 2013, Complainant was denied work at the Aiken, South
Carolina facility; and

3. On October 23, 2013, Complainant’s employment was terminated.

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). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. With regard to claim (1), Complainant stated that it was brought to
her attention by other African-American City Carrier Assistants that her work hours were
being unfairly assigned by her Supervisor. According to Complainant, a Caucasian City
Carrier Assistant was allowed to report to work at 7:30 a.m., the same time as the regular
carriers, but the other carriers were supposed to report to work at 9:00 a.m. Complainant
claimed that this coworker received more work hours and was assigned more days. The
Supervisor stated that the Caucasian City Carrier Assistant was hired on May 21, 2011, and
had experience on sixteen of eighteen routes in the office. The Supervisor explained that
Complainant was hired on June 15, 2013, and had experience on nine of eighteen routes in the
office. This disparity in experience between Complainant and the Caucasian City Carrier
Assistant was corroborated by the Postmaster. Another official who supervised Complainant
stated that all assignments were based on availability and knowledge of the routes. The
Agency determined that Complainant failed to establish a prima facie case of race
discrimination as to claim (1) because Complainant was not similarly situated to the Caucasian
City Carrier Assistant. The Agency reasoned that although they held the same position, the
Caucasian City Carrier Assistant had two years more experience as the Senior City Carrier
Assistant in the office, and knew more routes than Complainant. The Agency found that,
assuming arguendo that Complainant had set forth a prima facie case of race discrimination, it
articulated legitimate, nondiscriminatory reasons for its actions.

Complainant attempted to establish pretext by arguing that she was forced to only work Route
C022 which resulted in her not obtaining nearly as many hours and not acquiring the
experience to perform other duties through working other routes. The Agency noted that the
Supervisor asserted that during Complainant’s employment, she worked the following routes:
COOB – 12 times; C010 – 22 times; C012 – 1 time; C013 – 10 times; C016 – 7 times; C019 –
9 times; C022 – 34 times; and collection route – 24 times. The Agency determined that
Complainant clearly was assigned to work other routes besides Route C022.

With respect to claim (2), Complainant stated that she called the Aiken facility on September
27, 2013, and spoke with the Supervisor, Customer Services. Complainant asserted that she
asked if any work was available at Aiken and that she was informed they did have work
available but that she needed to check with her home office. Complainant maintained that she
received a call back and was told that her Supervisor at North Augusta said she could not work
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at Aiken. The Agency noted that Complainant did not identify any comparators for this claim.
Complainant’s Supervisor stated that an African-American City Carrier Assistant worked
36.19 hours at the Aiken facility from June 15 – October 23, 2013. The Agency determined
that Complainant failed to set forth a prima facie case of race discrimination as to claim (2).

Assuming arguendo that Complainant established a prima facie case, the Agency stated that the
Supervisor asserted that she was not aware that Complainant was ever denied work outside of
the North Augusta facility. The Supervisor acknowledged that she spoke with the Supervisor
at Aiken and told her that Complainant had only been working for a few months. According to
the Supervisor, no City Carrier Assistant has been denied work at another facility unless they
were scheduled to work at the North Augusta facility. The Supervisor maintained that she
lacked the authority to schedule work assignments at the Aiken facility. The Supervisor at
Aiken stated that she did not recall a conversation with Complainant about the North Augusta
Supervisor prohibiting Complainant from working at Aiken. The Agency determined that the
evidence did not support Complainant’s contention that any management official prevented her
from working at the Aiken facility. The Agency maintained that the conversation between the
Supervisor at North Augusta and the Supervisor at Aiken involved only the length of service
Complainant had.

As for claim (3), the Agency stated that Complainant was terminated due to improper
disposition of the mail. The Supervisor explained that mail assigned to Complainant for
delivery on October 17, 2013, was not delivered but rather was placed in two separate
collection boxes as if to be processed as raw mail. The mail was in delivery sequence and
included 12 flat-size pieces of mail and 75 letters. The Supervisor stated that the mail was
processed for delivery on the route that Complainant was assigned on October 17, 2013. The
Agency observed that Complainant contended there was no tangible proof that she placed the
mail in the collection boxes and that the mail was in her possession. The Agency noted that
Complainant filed a grievance concerning her removal and it was resolved at Step B with a
finding that the Agency had just cause in the issuance of the Notice of Removal. The Agency
determined that Complainant failed to establish that its explanation for her removal was a
pretext for discrimination.

With respect to Complainant’s claim that the incidents at issue constituted harassment, the
Agency determined that Complainant failed to establish a claim of harassment. The Agency
determined that Complainant did not show that she was subjected to unwelcome verbal or
physical conduct; that the conduct was based on Complainant’s protected status; that the
conduct was sufficiently severe or pervasive such that it created a hostile, abusive, or offensive
work environment or unreasonably interfered with Complainant’s work performance; and
Complainant did not show that there was a basis for imputing liability to the Agency.

The Agency observed that Complainant identified three incidents of alleged harassment over
approximately a five-month period. The Agency reasoned that, assuming Complainant
established that these incidents occurred and that the incidents occurred based on her status as
an African-American, the incidents nevertheless were not sufficiently severe or pervasive to
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constitute a hostile work environment. The Agency noted that Complainant and management
officials stated that Complainant did not advise any management official that she was being
subjected to harassing conduct despite the fact that she received harassment training when she
was hired.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Caucasian Supervisor who managed the City Carrier
Assistants favored the only Caucasian on the team in the assignment of hours. Complainant
maintains that management’s favoritism prevented her from becoming knowledgeable of all
routes. Further, Complainant maintains that on more than one occasion the Caucasian City
Carrier Assistant cut in to routes she was familiar with to maximize his hours. With regard to
being allowed to work at the Aiken facility, Complainant argues there is no rule about length
of time that a person needs to be employed to work at other offices.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request
No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

We shall assume arguendo that Complainant set forth a prima facie case of race discrimination
as to claims (1-3). With regard to claim (1), the Agency stated that the assignment of City
Carrier Assistant routes was based on availability and knowledge of the routes. The
Supervisor stated that the Caucasian City Carrier Assistant was hired on May 21, 2011, and
had experience on sixteen of eighteen routes in the office. The Supervisor explained that
Complainant was hired on June 15, 2013, and had experience on nine of eighteen routes in the
office. As for claim (2), the Supervisor asserted that the conversation between her and the
Aiken Supervisor involved only the length of service Complainant had and that she pointed out
to the Aiken Supervisor that Complainant had only been working for a few months. With
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respect to claim (3), the Agency asserted that Complainant was issued a Notice of Removal
based on improper disposition of the mail. The Supervisor stated that mail assigned to
Complainant for delivery was not delivered but instead was placed in two separate collection
boxes as if to be processed as raw mail. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions in claims (1-3).

Complainant attempts to establish pretext as to claim (1) by arguing that the Caucasian City
Carrier Assistant was favored over her and other African-American City Carrier Assistants in
the route assignments that were issued. However, this contention does not refute the Agency’s
position that knowledge of routes was a major factor in the issuance of assignments. The
Caucasian City Carrier Assistant had significantly more experience and knowledge of a greater
number of routes than Complainant. Moreover, the record reflects that although Complainant
received her greatest number of assignments to the C022 route, she also received a significant
number of assignments to several other routes. We find that Complainant has not established
that the Agency’s explanation was pretext intended to mask discriminatory motivation as to
claim (1).

In terms of claim (2), Complainant challenges the Supervisor’s integrity and contends there
was no rule based on length of employment that prevented her from working at other offices.
We discern no evidence that Complainant’s Supervisor at North Augusta prevented her from
working at the Aiken facility based on her race. Complainant’s Supervisor acknowledges that
she spoke to the Aiken Supervisor but that she only pointed out that Complainant had been
working at North Augusta for just a few months. The record indicates that the North Augusta
Supervisor did not have the authority to schedule work assignments at Aiken. Further,
Complainant’s Supervisor stated that an African-American City Carrier Assistant at North
Augusta worked 36.19 hours at the Aiken facility from June 15 – October 23, 2013. We find
that Complainant has not established that the Agency’s explanation was pretext intended to hide
discriminatory motivation as to claim (2).

With respect to claim (3), Complainant maintains there was no tangible proof that she placed
the mail in the collection boxes and that the mail was in her possession. We observe that a
grievance filed by Complainant was resolved at Step B with a finding that the Agency had just
cause in the issuance of the Notice of Removal. Complainant has not presented persuasive
evidence that challenges the Agency’s version of what occurred or the appropriateness of its
decision to terminate her employment. We find that Complainant has not established that the
Agency’s issuance of a Notice of Removal was attributable to discriminatory motivation.

Complainant claims that she was subjected to harassment by management officials. To
establish this claim, Complainant must show that: (1) she belongs to 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
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imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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); EEOC Enforcement Guidance at 6 (March 8, 1994).

We find no reasonable basis to conclude that Complainant was subjected to a hostile work
environment, as she has not established that any of the alleged Agency actions were severe or
pervasive such that a legally hostile work environment existed. Additionally, the Commission
finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993),
Complainant's claim of hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant’s
harassment claim is precluded based on the Commission’s finding that she failed to establish
that any of the actions taken by the Agency were motivated by discriminatory or retaliatory
animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000).

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
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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 (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 Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 24, 2017
Date