Lois G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Oct 2, 2015

01-2013-3161-0500 (E.E.O.C. Oct. 2, 2015)

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

Lois G.,1
Complainant,

v.

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

Appeal No. 0120133161

Hearing No. 510-2012-000038X

Agency No. 1H-336-0043-11

DECISION

On August 12, 2013, Complainant filed an appeal from the Agency’s July 16, 2013, final
order 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Level 4 Mail
Handler at the Agency’s Tampa Logistics and Distribution Center (L&DC). Additionally,
Complainant at times was appointed to the position of 204-B Acting Supervisor, Distribution
Operations. At all times relevant to this complaint, the Manager, Distribution Operations at
the Tampa L&DC in Tampa, Florida was Complainant’s first level supervisor (Person A).

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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On June 9, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), color (black), national origin (African
American), sex (female), and age (51) when:

On February 4, 2011, she was told by management that she would no longer be an
acting supervisor.

At the conclusion of the investigation on her complaint, 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 on her complaint. While her complaint was pending before the
Commission, Complainant filed another EEO complaint.

On November 3, 2011, Complainant filed a second EEO complaint alleging that she was
subjected to discrimination on the bases of race (African American), color (black), national
origin (African American), sex (female), age (51), and in reprisal for protected EEO activity
when:

1. On September 9, 2011, Complainant’s manager became angry when she had to
cover Complainant’s meal break;
2. On September 11, 2011, Complainant was told her services as a 204-B (Acting
Supervisor) were no longer needed and she was putting her manager's job in
jeopardy; and
3. Starting in December 2010 and continuing, Complainant’s Forms 1260 and 3971
have not been processed in a timely manner.

The Agency filed a motion to consolidate the complaints. The AJ granted the Agency’s motion
to consolidate. The AJ held a hearing on May 16, 2013. The AJ issued a decision on July 3,
2013.

With regard to the first complaint, the AJ noted that Complainant claimed that on February 5,
2011, she was informed she would no longer be a 204-B Acting Supervisor. The AJ found
Complainant was not aggrieved with regard to this claim. The AJ noted that assuming Person
A said something to make Complainant think that she would not be utilized as a 204-B Acting
Supervisor as early as February 2011, Complainant continued to be utilized in that position
until September 2011. The AJ found this incident was nothing more than a proposed event and
did not render Complainant aggrieved.

With regard to claim (1) of Complainant’s second complaint, the AJ noted that Person A
credibly testified that it was not her responsibility to cover for Complainant or any other
supervisor when supervisors took a meal break. The AJ found that on September 9, 2011,
Complainant took her meal break without making an adequate effort to properly cover the
“Scan While You Band” operation. The AJ stated that even if Complainant perceived Person
A to be angry or upset when Person A called Complainant over the radio to let her know the
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“Scan While You Band” area was about to fail, the AJ found Person A had reason to be upset
with Complainant.

With regard to claim (2) of the second complaint, the AJ found Person A testified that
Complainant was removed from the Acting 204-B Supervisor assignments because of
Complainant’s repeated performance deficiencies. The AJ specifically noted that Person A
stated Complainant wasted time by sending employees to other areas, such as the dock in the
morning hours, so as not to have to watch the employees while she was in the office. The AJ
found Person A credibly testified that on three occasions she instructed Complainant to cease
that practice. The AJ further noted that as an Acting 204-B Supervisor, Complainant was not
subject to discipline because she was officially a permanent craft employee and not a
permanent supervisor, and only a permanent supervisor was subject to discipline. The AJ
stated the only action Person A could do to resolve Complainant’s performance deficiency was
to remove her from serving as an Acting 204-B Supervisor.

With regard to claim (3) of the second complaint, the AJ noted that Complainant claimed that
her pay was delayed in 2010 on December 16, 17, 18, and 30th and in 2011 on January 6, 7,
and 8th

. In his decision, the AJ noted that initially Complainant worked a full 40-hour week as
a 204-B. The AJ noted that when an employee is in an Acting 204-B status and regularly
works 40 hours a week, it is not necessary for PS Form 1260s to be completed in order to
receive higher level pay. However, the AJ noted that when an employee is not on an
automatic 40-hour Acting 204-B Supervisor status, the employee must complete a PS Form
1260 in order to receive higher level pay. The AJ noted that after Person A arrived at the
Tampa L&DC, she was instructed to reduce the number of hours worked by supervisors. The
AJ noted as a result, Complainant was required to complete the PS Form 1260 in order to
receive higher level pay when she fulfilled the role of an Acting 204-B.
The AJ found that Complainant’s 1260s were not always signed by Person A on the same day
they were submitted by Complainant. However, the AJ noted they were not always submitted
directly to Person A. The AJ found Person A credibly testified that she always signed the
1260s when she received them. The AJ found no credible evidence that Person A had any
involvement in any delays involving the submission and signing of Complainant’s 1260s or any
subsequent delays that may have related to Complainant getting paid the higher level wages.
Complainant did not allege that anyone other than Person A was responsible for the alleged
discrimination in claim (3).

The AJ found Complainant failed to establish that the Agency’s legitimate, nondiscriminatory
reasons for its actions were a pretext for discrimination. Moreover, the AJ found
Complainant’s hostile work environment claim was not sufficiently severe or pervasive to
establish harassment.

The Agency subsequently issued a notice of final action on July 16, 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.
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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

After a careful review of the record, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. We note
Complainant does not challenge the definition of the issues identified by the AJ. We find the
record in the present case fully developed. We discern no basis to disturb the AJ's decision.
In the present case, the record supports the AJ’s finding that the Agency presented legitimate,
nondiscriminatory reasons for its actions. Complainant failed to show that the Agency’s
actions were a pretext for prohibited discrimination or retaliation. Moreover, we find
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Complainant failed to establish that she was subjected to a hostile work environment as she
failed to show that the alleged actions were based on her protected classes.

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.
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
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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

October 2, 2015
Date