Kathlyn K.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Aug 20, 2020

EEOC Appeal No. 2020000357 (E.E.O.C. Aug. 20, 2020)

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

Kathlyn K.,1
Complainant,

v.

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

Appeal No. 2020000357

Hearing No. 541-2017-00198X

Agency No. 4E-800-0057-17

DECISION

On September 18, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final
decision, dated August 15, 2019, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Full-time Rural Carrier at the Agency’s Parker
Post Office in Parker, Colorado. Believing that she was subjected to harassment based on her race
(Caucasian), sex (female), age (1959), and in reprisal for prior protected EEO activity (instant
complaint), Complainant filed an EEO complaint on May 23, 2017.

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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The Agency framed the claims as follows:

1. On May 31, 2016 and June 23, 2016, Complainant was subjected to
Investigative Interviews regarding an email her son sent to the Postmaster
General.

2. On November 11, 2016, Complainant was subjected to an Investigative
Interview regarding a letter she gave to her customers.

3. On December 2, 2016, Complainant was subjected to an Investigative
Interview regarding a complaint letter from one of her customers.

4. On December 9, 2016, Complainant received a Letter of Warning for
Failure to Follow Instructions and Inappropriate Conduct.

5. On December 10, 2016 and ongoing, management insisted that
Complainant deliver to an address that is often blocked by customer
vehicles and presents a safety hazard.

6. On December 10, 2016, and ongoing, including March 7, 2017; June 7,
2017; June 10, 2017; and June 14, 2017, management has accused
Complainant of misdelivering packages.

7. On December 23, 2016, Complainant’s substitute carrier did not scan
vacation holds.

8. On December 23, 2016, Complainant’s Postmaster ripped paperwork on an
Express package out of her hands and said “you don’t need that”.

9. On December 30, 2016, Complainant was mandated to work overtime.

10. On December 30, 2016, Complainant was subjected to an Investigative
Interview.

11. On January 12, 2017, Complainant was issued a 7-day No-time-off
Suspension for Failure to Follow Instructions resulting in Unsatisfactory
Performance.

12. On March 15, 2017, Complainant reported mis-deliveries of mail to her
Supervisor and Postmaster and nothing was done.

13. On May 2, 2017, Complainant’s Postmaster tried to get her to sign a
document that she believed was incorrect, yelled at her, and threatened to
subject her to an Investigative Interview.
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14. On May 11, 2017, Complainant’s Postmaster questioned her about putting
a rubber band on a parcel, putting parcels on porches, and being rude to
customers.

15. On June 1, 2017, Complainant was subjected to an Investigative Interview
regarding several complaint letters received from customers.

16. On June 1, 2017, Complainant’s Postmaster yelled at her about not
delivering a package and threatened to put her on Emergency Leave is she
did not leave the building immediately.

17. On June 29, 2017, Complainant was issued a 14-day Suspension.

On June 27, 2017, the Agency dismissed claim (1) for untimely EEO Counselor contact. The
remainder of the formal complaint was accepted for investigation. At the conclusion of the
investigation2, 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).

While the matter was pending before the AJ, Complainant filed a motion to amend, including the
addition of a claim regarding her May 2, 2018 termination. On April 15, 2019, the AJ granted the
motion. However, on the same day, the Agency informed the AJ that Complainant had filed a
grievance regarding the termination. In her response filing, Complainant stated she had never filed
a grievance regarding her termination and argued that the Agency falsified a grievance form.
Complainant reiterated her denial in a telephonic conference call with the AJ. Thereafter, the
Agency produced seven exhibits, including the grievance form, illustrating that Complainant did
file a grievance. The AJ ordered Complainant to respond, with only “yes” or “no” replies, to six
interrogatories addressing the Agency’s exhibits. Upon receipt of the responses, the AJ concluded
that Complainant “has been less than candid” and had filed the grievance. This, in addition to
Complainant’s non-compliance with the AJ’s order restricting additional pleadings and email
policy, caused the AJ to revoke Complainant’s requested hearing. The AJ noted Complainant’s
conduct was not mere negligence, but reflected a “total disregard” for orders issued, clear
instructions, and multiple warnings. The case was remanded to the Agency for a final decision.

In its August 15, 2019 decision, the Agency concluded that Complainant failed to prove that she
was subjected to discrimination as alleged.

As an initial matter, the Agency found that Complainant did not establish a prima facie case of
reprisal with respect to claims (1) through (12). Claims (1) through (11) occurred prior to her
initial contact with an EEO Counselor in the instant case.

2 The Report of Investigation (ROI) reflects that Complainant failed to provide an affidavit. The
investigator sent a request by mail on July l3, 2017, and made two additional attempts by email on
July 12, 2017 and July 14, 2017.
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With the absence of an affidavit from Complainant, she did not assert that the responsible
management officials (RMOs) had prior knowledge of any protected activity. Although claim (12)
occurred on March 15, 2017, after Complainant’s initial contact, there was no evidence the RMOs
were aware at that time. Complainant’s initial interview with the EEO Counselor did not occur
until March 30, 2017, after the alleged events. The Agency reasoned that Complainant also failed
to present a prima facie case of age discrimination, as there was no evidence that age played a role.
Both RMOs attested that they did not know Complainant’s age. Further, the Postmaster was also
over 40 years of age and, while younger than Complainant, not “substantially younger”.

Nonetheless, the Agency assumed for purposes of analysis that Complainant established a prima
facie case on all bases. Before considering the broader claim of harassment, the Agency analyzed
those discrete acts that would, outside of the harassment framework, state a claim: claims (9), (11),
and (17).3 In claim (9), Complainant alleges she was required to work OT. Her supervisor,
however, attested that Complainant had volunteered to work OT on that day. She later stated she
was not going to work that day, but at that point the Agency had planned on her working and could
not replace her. The 7-Day Suspension (claim (11)) was issued went Complainant failed to follow
instructions, following an Investigative Interview and LOW. Similarly, according to management,
when Complainant continued to make the same mistakes and failed to correct her deficiencies, a
14-Day Suspension (claim (17)) was warranted. After providing legitimate, non-discriminatory
reasons, the burden shifted to Complainant to show the reasons were pretext for discriminatory
animus. The Agency noted that Complainant declined her opportunity to submit evidence of
pretext when she failed to provide an affidavit. Her unsupported allegations that her supervisor
treated her differently than male, Latino/Mexican employees, reasoned the Agency, are inadequate
to meet her burden.

In considering Complainant’s harassment claim, the discrete acts were considered in conjunction
with the remaining claims. Many of the incidents concerned Complainant’s performance. For
example, in claim (3), the Agency reasoned that the Investigative Interview stemmed from
customer calls and complaints regarding Complainant’s improper delivery of parcels.
Complainant claimed that she did not have a safe way to turn around and so she did not take parcels
to that address. Claim (5) addressed the same issue, and the management official explained that
he went to the address himself with a safety officials and union steward. It was decided that
Complainant could no longer drive up the driveway and she now leaves a notice if the customer
has a parcel. In other instances, such as claim (8) and (13), the Postmaster stated that Complainant
became rude, argumentative, and disrespectful. The Agency concluded that Complainant failed to
prove the incidents occurred as alleged and did not provide any evidence of discriminatory motive.

3 Claim (4) was dismissed for untimely counselor contact. According to the Agency, in order for
Complainant’s January 27, 2017 contact to be timely, the alleged events needed to occur on or
after December 13, 2016.
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Many of the events, stated the Agency, were within the normal scope of supervising, instructing
and discipling employees.

Complainant filed the instant appeal. On appeal she provides numerous statements wherein she
charges that the EEOC AJs committed fraud against her, the Agency falsified documents, and she
was denied portal access after the hearing was canceled. Additionally, she disputes her May 2,
2018 termination.

ANALYSIS AND FINDINGS

Standard of Review

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

Dismissal of Hearing Request

An AJ has the authority to sanction either party for failure without good cause shown to fully
comply with an order. 29 C.F.R. § 1614.109(f)(3). The sanctions available to an AJ for failure to
provide requested relevant information include an adverse inference that the requested information
would have reflected unfavorably on the party refusing to provide the requested information,
exclusion of other evidence offered by the party refusing to provide the requested information, or
issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice,
EEOC Appeal No. 01A03341 (Dec. 8, 2000).

These sanctions must be tailored in each case to appropriately address the underlying conduct of
the party being sanctioned. A sanction may be used to both deter the non-complying party from
similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction
would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction.
Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances,
where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas
v. Dep't of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).

As set forth above, Complainant was found to have been repeatedly dishonest about the filing of a
grievance. Her denials resulted in further inquiry by the AJ, the additional production of
documents and evidence by the Agency, and overall delay of the hearing process. The AJ also
noted that Complainant repeatedly disregarded her policy on emails and failed to follow previous
orders.
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For example, in the AJ’s June 4, 2019 order Complainant was directed to respond to interrogatories
without submitting additional information. The order specifically denied Complainant’s May 24,
2019 motion seeking reconsideration and an additional opportunity to respond. Complainant was
cautioned that failure to comply could result in sanctions. Nevertheless, Complainant filed several
additional pleadings. We find that the AJ was well within the bounds of discretion in dismissing
Complainant's hearing request given Complainant's failure to comply with the AJ's orders

Disparate Treatment

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). The prima facie
inquiry may be dispensed with in this case, however, since 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).

The instant record supports the legitimate, non-discriminatory reasons provided by management
regarding claims (9), (11) and (17). The Postmaster and Complainant’s supervisor agreed that she
needed to work OT (claim (9)) on December 30, 2016, because she had originally volunteered to
do so and when she later declined another employee was not available. Management explained
that a junior employee had been given approval for leave and could not be called in. More senior
employees could not be required to work the OT either. As for Complainant’s assertion that newly
hired employees that were casing mail could take her route, the Postmaster explained that those
individuals were not fully training for delivery duties. The 7-day suspension (claim (11)) was
based on errors made on two consecutive days by Complainant. In one instance she scanned two
parcels for an address as a “Vacation Hold” but left them with “Vacation Hold” mail for a different
address. The day prior, Complainant scanned the parcel for one address but delivered it to another
address on a different street. Then the parcel was returned to sender as refused, though the customer
did not endorse it as refused. Complainant was issued the 14-day suspension (claim (17)) for again
placing parcels on a vacation hold even though it was not requested and for refusing to answer
questions during the Investigative Interview. Her prior LOW and 7-day suspension were also
contributing factors to the 14-day suspension.

As noted above, despite repeated attempts to contact her, Complainant did not provide an affidavit.
On appeal she has not provided any evidence that the Agency’s proffered reasons were pretextual.
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Moreover, Complainant has not established any nexus between her protected bases and the
Agency’s actions. Therefore, we find that the Agency’s finding of no discrimination in these
discrete events (claims (9), (11), and (17)) was proper.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). 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 at 6 (Mar. 8, 1994).

Claims (2), (3), (10) and (15) concern investigative interviews. The Commission notes that merely
conducting an investigation into purported improper or illegal conduct does not cause any injury
without more, for example, resulting disciplinary action. Indeed, an agency is obligated to look
into alleged improper conduct of its employees. See Rogers v. Department of Defense, EEOC
Request No. 05940157 (February 24, 1995). While some of these interviews were relied upon in
subsequent discipline, as noted above, the record reflect these actions were based on legitimate
reasons. In other instances, claims (13), (14), and (16), Complainant contends she questioned
about her performance and yelled at by the Postmaster. When asked, the Postmaster did not recall
many of the specific incidents, but acknowledged “speaking with all employees regarding their
work performance at various times” as part of her managerial responsibilities. With respect to the
incident in claim (8), the Postmaster denied ripping a label but agreed that she took a paper from
Complainant that she should not have had. The PM conceded that she was “starting to get angry
because [Complainant] was very difficult to deal with. She becomes rude and disrespectful.”
Management officials dispute that several of the incidents occurred as described by Complainant.
Others, the record shows, were based in legitimate concerns and efforts to correct Complainant’s
mistakes and poor performance. The instant record does not illustrate a hostile work environment.
Moreover, we note that PM shares Complainant’s protected bases of race, sex, and age.
Complainant has not provided any evidence of a nexus between the allegedly harassing events and
her protected bases.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (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

August 20, 2020
Date