Nenita S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181938 (E.E.O.C. Sep. 24, 2019)

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

Nenita S.,1
Complainant,

v.

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

Appeal No. 0120181938
Agency No. 4C-440-0161-17

DECISION

Complainant timely filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.
ISSUES PRESENTED

The issues presented are: (1) whether Complainant established that the Agency's proffered
explanation for its actions was pretext to mask unlawful discrimination based on her sex or EEO
activity; and (2) whether Complainant established that she was subjected to a hostile work
environment, as alleged.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the
Agency’s Post Office in Sardis, Ohio. Report of Investigation (ROI), at 50.2

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.
2 The Agency informed the Commission that it mislabeled part of the Report of Investigation as
Agency No. 4C-150-0051-17.
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According to Complainant, on August 4, 2016, after she performed her route, the Postmaster
(female) berated her in an angry manner, threatening to write her up for defying authority. Id. at
189. Complainant stated that the Postmaster was upset because she did not allow the Postmaster
to accompany her on her route for a route inspection. Id. Complainant also averred that the
Postmaster said she was not allowed to listen to music on her headphones and made other
comments to her in an angry manner. Id. The Postmaster denied yelling at Complainant on
August 4, 2016, and instead accused Complainant of yelling at her. Id. at 204. The Postmaster
also attested that she never told Complainant that she could not use her headphones, and that she
simply told Complainant that she needed to change her earbuds. Id.

The Postmaster subsequently issued Complainant a Letter of Warning (LOW) on September 21,
2016. The Postmaster attested that Complainant was issued the LOW due to Complainant’s
failure to comply with the instruction to have her route inspected on August 4, 2016, as
scheduled. Id. at 209. The Postmaster stated that she had notified Complainant that she would be
riding with Complainant on August 4, 2017, but Complainant left for her route without
communicating that she was leaving. Id. The Postmaster attested that, when she confronted
Complainant about the matter, Complainant was very loud and rude in her conduct. Id.

Complainant additionally stated that on April 25, 2017, she had a discussion with the Postmaster
wherein she told the Postmaster that she (Complainant) was afraid of her temper. Complainant
stated that the Postmaster then responded by laughing, saying Complainant did not get along
with anyone and had an attitude problem. Id. at 191. Complainant further averred that the
Postmaster said that she (the Postmaster) was able to overhear and monitor her conversations
with the aid of headphones that function like hearing aids.

The Postmaster did admit to eavesdropping on Complainant’s conversations while Complainant
was not on Agency property. Id. at 216. The Postmaster attested that the reason she listened in on
Complainant’s conversations was due to extreme stress and fear for her safety, as Complainant
had been telling other employees that she was going to her harm her (the Postmaster) violently.
Id.

Complainant also maintained that on May 11, 2017, she was advised by a coworker (C1) that the
Postmaster had been telling C1 the details of Complainant’s grievances concerning harassment.
C1 specifically attested that the Postmaster told her that Complainant had filed numerous
grievances and she keeps interactions with Complainant in a journal. Id. at 394. C1 further
attested that she was surprised that the Postmaster kept a journal about Complainant, and that the
Postmaster was very open to others concerning her interactions with Complainant. Id. at 395.

On July 25, 2017, the Postmaster performed a driving observation of Complainant while in the
performance of her duties. Therein, the Postmaster reportedly observed Complainant unsafely
parking her vehicle. The Postmaster, however, initially cited no safety violations. But the
Postmaster, after reportingly speaking with her own Union Representative the next day on July
26, 2017, decided to change Complainant’s observation to an “unsafe” review. Id. at 203.
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According to the Postmaster, she changed Complainant’s observation at 9:00 a.m. on July 26,
2017, and then around 11:00 a.m. the same day, she first became aware of Complainant’s EEO
activity when the EEO Counselor phoned her. Id.

Complainant maintained that due to the Postmaster’s knowledge of her EEO Counselor contact,
the Postmaster exaggerated the July 25, 2017, driving observation to make it appear as though
she parked in an unsafe manner. Id. at 175. Complainant specifically attested that the safety
violation cited in the observation was changed to make it appear as if she parked in the middle of
an interstate when in fact the road cited is a backstreet in a small town. Id.
Subsequently, on August 29, 2017, the Postmaster conducted a Pre-Disciplinary Interview (PDI)
with Complainant due to the driving observation conducted on July 25, 2017. The Postmaster
explained that she conducted the PDI because Complainant was observed parking in an unsafe
manner on more than one occasion. The Postmaster specifically explained that she observed
Complainant parked in her vehicle, talking to her cousin for 10 minutes in the street, and as a
result Complainant ignored a truck that had to go around her vehicle. Id. at 224. The Postmaster
additionally stated that on another occasion Complainant had her vehicle parked in the line of
traffic, facing the opposite direction, while she was out of her vehicle delivering packages. Id.
The Postmaster believed that Complainant should have parked her vehicle in the parking lot of
an adjacent restaurant instead of in the street facing traffic. Id. The Postmaster thereafter issued a
September 20, 2017, LOW to Complainant, charging her with parking in an unsafe manner. Id.

On August 17, 2017, Complainant filed an EEO complaint, as amended, alleging that the Agency
discriminated against her on the bases of sex (female) and reprisal for prior protected EEO
activity3when:

1. On August 4, 2016, the Postmaster yelled at her, accused her of yelling at her (the
Postmaster), and told her that she could not listen to music on her headphones;

2. On September 21, 2016, she was issued a Letter of Warning (LOW);

3. On April 25, 2017, the Postmaster laughed at her and told her she listened to her
conversations at work through a headset in the car;

4. On May 11, 2017, a co-worker told her that the Postmaster told her about a grievance
Complainant filed;

5. On July 25, 2017, the Postmaster threatened to give her a Pre-Disciplinary Interview
(PDI);

6. On or around July 25, 2017, she was given a driving observation by the Postmaster;
and

3 Complainant cites to her EEO Counselor contact dated July 14, 2017, for the instant complaint
as her prior protected EEO activity.
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7. On August 29, 2017, she was given a PDI that subsequently resulted in her being
issued a Letter of Warning (LOW) on September 20, 2017.

Following the investigation, 4 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). Therein, the Agency
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

The Agency initially addressed claims 6 and 7 as timely claims of disparate treatment. The
Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, which
Complainant did not establish were pretextual.5 In addressing Complainant’s allegations of a
hostile work environment, the Agency found that Complainant did not show that claims 6 and 7
were motivated by discriminatory or retaliatory animus. The Agency also noted, with regard to
claims 1-5, that Complainant’s allegations were neither severe nor pervasive enough to amount
to a hostile work environment.

CONTENTIONS ON APPEAL

Neither party has filed a brief on appeal.

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 Chap. 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”).

4 The Agency initially dismissed claims 1 - 6. On appeal, the Commission reversed the Agency’s
decision and remanded Complainant’s complaint for processing. EEOC Appeal No. 0120180073
(Dec. 8, 2017).

5 The Agency did not address claim 2 under a disparate-treatment theory, finding that
Complainant’s EEO Counselor contact was untimely. As Complainant does not contest the
dismissal on appeal, we will not address it further.
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ANALYSIS AND FINDINGS

Disparate Treatment (Claims 5-7)

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially 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. Corp. 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 burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
After a review of the record, assuming arguendo that Complainant has established a prima facie
case of discrimination based on her sex and reprisal, we find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Regarding claims 5-7, the Postmaster
explained that Complainant was observed parking in an unsafe manner on more than one
occasion. ROI at 224. The Postmaster specifically explained that she observed Complainant
parked in her vehicle, talking to her cousin for 10 minutes in the street, and as a result
Complainant ignored a truck that had to go around her vehicle. Id. The Postmaster additionally
stated that on another occasion Complainant had her vehicle parked in the line of traffic, facing
the opposite direction, while she was out of her vehicle delivering packages. Id. The Postmaster
believed that Complainant should have parked her vehicle in the parking lot of an adjacent
restaurant instead of in the street facing traffic.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons
were pretext for discrimination. Burdine, at 256. In an attempt to show pretext, Complainant
stated that she believed her sex was a factor herein as the Postmaster had a better relationship
with the male Carriers. Complainant also stated, with regard to claims 5-7, that the Postmaster
initially provided her with a “safe” driving observation, which the Postmaster changed to an
“unsafe” review after she learned of her July 14, 2017, EEO Counselor contact. Complainant
maintained that, due to the knowledge of her EEO Counselor contact, the Postmaster
exaggerated the July 25, 2017, driving observation to make it appear as though she parked in an
unsafe manner. Complainant specifically attested that the stated safety violation cited in the
observation was changed to appear as if she parked in the middle of an interstate when in fact the
road cited is a back street in a small town.
Upon review, we find that Complainant has not established that the Agency reasons were
pretextual with respect to claims 5-7. In so finding, with regard to claims 5-7, we note that the
Postmaster attested that she performed the route observation and changed the observation to an
“unsafe” review before she received knowledge of Complainant’s July 14, 2017, EEO contact.
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The Postmaster specifically attested that she changed Complainant’s observation at 9:00 a.m. on
July 26, 2017, but she did not receive knowledge of Complainant’s EEO Counselor contact until
later that same morning. Complainant has alleged that the Postmaster changed the observation
after learning of Complainant’s EEO activity, but the preponderance of evidence does not
establish that to be the case. We note that Complainant did not request a hearing before an EEOC
Administrative Judge and, as a result, we do not have the benefit of an Administrative Judge's
credibility determinations of the witnesses in this case. Other than Complainant’s unsupported
allegations, there is simply no evidence here that the Postmaster was motivated by discriminatory
or retaliatory animus.
Hostile Work Environment
As discussed above, Complainant did not demonstrate that the Agency's actions in claims 5-7
were based upon reprisal or sex. Therefore, we find that under the standards set forth in Harris v.
Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant' claim of hostile work environment
regarding these claims must fail. See Enforcement Guidance on Harris v. Forklift Systems. Inc.
(March 8, 1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that the Agency's actions in claims 2 and 5-7 were motivated by
discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sep. 21, 2000).
In specifically alleging a hostile work environment, Complainant contended that the Postmaster
said she was not allowed to listen to music on her headphones, eavesdropped on her
conversations, and made comments to her in an angry manner (claim 1). Complainant also
maintained that the Postmaster laughed at her, saying she had an attitude problem and did not get
along with anyone (claim 3). While Complainant’s work environment may not have been ideal,
we find that the incidents alleged are not sufficiently severe or pervasive as to constitute a hostile
work environment under Commission regulations. We note that EEO laws are not a civility code.
Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the
victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In
looking at the totality of the circumstances, we find that these incidents were not objectively
offensive, and that Complainant has not shown that she was subjected to a hostile work
environment based on her protected categories.
We lastly note that Complainant maintained that she was advised by C1 that the Postmaster had
been telling C1 and other people about her grievances (claim 4). While C1 attested that the
Postmaster told her that Complainant had filed numerous grievances, the record is devoid of
evidence reflecting that the Postmaster made comments about Complainant’s EEO activity in
relation to the filed grievances. Therefore, we find that Complainant has not shown that she was
subjected to discrimination or a hostile work environment based on reprisal or sex, as alleged.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.
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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

September 24, 2019
Date