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

Equal Employment Opportunity Commission

Jan 13, 2016

0120141538 (E.E.O.C. Jan. 13, 2016)

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

Nila S.,1
Complainant,

v.

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

Appeal No. 0120141538

Agency No. 4G350005413

DECISION

On March 13, 2014, Complainant filed an appeal from the Agency’s January 13, 2014, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). 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 full-time
Complaints and Inquiry Clerk at the Agency’s District Office in Birmingham, Alabama. On
May 22, 2013, Complainant filed an EEO complaint alleging that the Agency subjected her to
unlawful harassment on the bases of disability (depression) and reprisal (prior EEO activity)
when: (1) on January 31, 2013 and May 6, 2013, she was subjected to investigative
interviews; (2) on unspecified dates, beginning on or around January 14, 2013, she was given
increased workloads; (3) since an unspecified date, she has been subjected to increased
scrutiny; (4) on February 15, 2013, she was issued a Letter of Warning (LOW); (5) on April

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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8, 2013, she was forced to submit a PS Form 3971 for being late; (6) on December 28, 2012,
and August 1, 2013, she was denied leave; and (7) on June 20, 2013, she was forced to
complete a PS Form 3971 for being late.

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 decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

ANALYSIS AND FINDINGS

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”).

Disparate Treatment Claims

We agree with the Agency and conclude that the record is devoid of evidence that the
responsible management officials (i.e., Manager, Consumer and Industry Contact (M1) and
Marketing Manager (M2)) were aware of Complainant’s disability or prior EEO activity prior
to April 3, 2013. Accordingly, there is insufficient evidence in the record to show that: (a) the
refusal to grant Complainant leave for December 28, 2012; (b) the alleged increased
assignment of cases to Complainant before April 3, 2013; and (c) the LOW issued to
Complainant on February 15, 2013, were motivated by Complainant’s disability or prior EEO
activity.2

We also agree with the Agency and conclude that M1 articulated legitimate, non-
discriminatory/retaliatory reasons for the discrete employment actions alleged by

2 While Complainant correctly notes that M1 was aware that she was approved for Family and Medical Leave Act
(FMLA) leave, documentary and testimonial evidence in the record supports the conclusion that M1 was not privy
to any of the details pertaining to such FMLA status. Moreover, the Agency was permitted to require Complainant
to adhere to the Agency’s leave policy despite her FMLA status.
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Complainant.3

Specifically, M1 testified that she denied Complainant’s request for sick leave
for December 28, 2012 and August 1, 2013, because in both cases two employees had already
been approved for leave and were already scheduled to be off on that date. Moreover, the
undisputed record establishes that Complainant advised M1 that the sick leave request was
necessary to undergo medical test but explicitly stated that it was not related to her FMLA
status. However, even if Complainant had indicated the requested leave was for FMLA
purposes, Complainant was required to make reasonable efforts to schedule leave so as not to
unduly disrupt the Agency's operations and the Agency was entitled to require Complainant to
adhere to the Agency’s leave policy.
M1 also disputes Complainant's claim that beginning on or around January 14, 2013, she was
given increased workloads. Specifically, M1 testified that cases are automatically assigned by
the Enterprise Customer Care (eCC) system. M1 also testified that whenever employees bring
questions of inequitable case distribution to her attention, she takes appropriate action to
remediate the problem.4

Moreover, M1 noted that Complainant has consistently assumed the
least of the workload in her unit and has not been assigned many additional duties that her co-
workers perform.
M1 further testified th at that t he F ebruary 15, 201 3 L OW was i ssued because Complainant w as Absent w ithout
Leave (AWOL) on December 28, 2012, in violation of the Employee and Labor Relations Manual (ELM) requiring
employees to obtain approval on a PS Form 3971 before taking leave, except in case of emergencies.5

M1 also
testified that the LOW was issued because Complainant failed to: (1) respond timely to a customer inquiry; (2) send
an eCC case number to the Postal Regulatory Commission (PRC); (3) properly document an eCC case file; and (4)
create a hard copy file for the Consumer Affairs Office.
Harassment Claims

Complainant also alleged that she was harassed when she received an investigative interview
on May 6, 2013, for (a) mailing out a letter to a customer that should have been signed by a
manager; (b) rudeness to a different customer; (c) reporting that her case logs were
incomplete; and (d) attempting to mail a letter and supplied an Express Mail Account number
to yet another customer. We agree with the Agency that the undisputed record establishes that
no discipline followed the investigative interview. We also note that management asserts that
similarly situated comparison employees were also given investigative interviews.

Complainant further alleged that eCC cases were assigned to her that should have been
assigned to other employees while she was off work from January 9 through January 13, 2013,
February 18, 2013 through February 22, 2013, and from April 19, 2013 through April 23,

3 We assume for the purposes of this decision that Complainant established a prima facie case
of disability discrimination and retaliation.
4 The record indicates that during the Alternate Dispute Resolution (ADR) phase o f this complaint, Complainant
noted that she did not bring this issue to M1’s attention.
5 Specifically, the record establishes that Complainant's request for leave on December 28, 2012, was disapproved,
yet she chose to be absent anyway.
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2013. However, we agree with the Agency that the documentary and testimonial evidence
does not reflect disparate treatment in the assignment of cases. Moreover, aside from
Complainant’s bare uncorroborated assertions, the record is devoid of evidence showing: (a)
that Complainant was assigned cases while she was on leave; (2) that she was not taken out of
the system during these periods; or (3) that she was held accountable for cases during such
times. Additionally, the undisputed record shows that Complainant never complained to M1
about this or filed a grievance over it.

Complainant further complained that she was subjected to increased scrutiny in that M1
accused her, on January 25, 2013, of having a pattern of taking leave with the majority of her
leave requests being on Fridays, and told her that she must obtain prior approval when taking
leave. Complainant further alleged that M1 examined her case log closely and during the May
6, 2013 investigative interview told her that her log was incomplete. Complainant also alleged
that on July 31, 2013, M1 raised her voice when apprizing complainant of an error that she
made in putting a manager’s name in one of her reports instead of the customer’s name.

M1 testified that Complainant received the same scrutiny, coaching, remediation training and
mentoring as her peers. However, Complainant did not improve her performance and
continued to make errors. M1 further testified that Complainant does not adequately address
customer concerns when preparing written responses. She added that she had not given
Complainant more scrutiny than others, and that to ensure all employees are treated the same,
the District Manager's Administrative Assistant (AA) conducted training and has been
reviewing correspondence.

Complainant also averred that the LOW she received on February 15, 2013, was unwelcome
harassing conduct because M1 had earlier agreed to rescind a LOW given to her on January
14, 2013, for the same things, because the earlier LOW would have been deemed procedurally
defective since M1 had failed to allow Complainant representation at the time of its issuance. 6

6 We note that we have reviewed this claim on its merits and accordingly will not address the Agency’s conclusion
that it is procedurally moot because of a prior settlement.

However, as noted above, we agree with the Agency that the February 15, 2013 LOW was
issued for legitimate, nondiscriminatory reasons not shown to be pretext. Finally,
Complainant attested that being forced by M1 and M2 to submit a PS Forms 3971 for being
late to work on April 8, 2013 and June 20, 2013 was harassing conduct. However, the
preponderance of the evidence does not show that Complainant was forced to submit a PS
Form 3971 for being late on April 8, 2013 or June 26, 2013. M1 testified that she was not at
work on April 8, 2013, that she did not return to work until April 16, and that she knew
nothing about the April 8 incident. In addition, Complainant's leave reports and Time and
Attendance Control System (TACS) records do not reveal that she filled out a PS Form for
April 8, 2013. M2 also testified that she did not force complainant to file a PS Form 3971 for
being late on April, 8, 2013. Rather, the record shows that an email was generated after April
8, 2013, by TACS notifying M2 of a clock ring error with respect to Complainant’s April 8,
2013 attendance.
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The record further shows that on April 13, 2013, during M1’s absence, M2 sent a subsequent
email to Complainant advising her of the clock ring error and asking her for an explanation.
Complainant responded that the clock ring error was due to her being late on that day. M2
then asked her if she had notified the employee filling in for M1 that she was late or if she had
completed a PS Form 3971. Complainant responded that she had completed the PS Form
3971, but she did not inform M2 that she desired to make up the clock ring at lunch. Given
the fact that the date of the clock ring error had already passed when the TACS notified M2, it
would have been impossible for Complainant to have made up the missing time on her lunch as
she claims. Complainant’s TACS record for the day also does not show that she requested
leave for her late time on the date in question.

Complainant also alleged that she was retaliated against when, on June 26, 2013, M1
instructed her to submit a leave slip for being 13 “ticks” late to work and marked her leave as
unscheduled, rather than permitting her to make up her time at lunch or after work.
Complainant also asserts that a co-worker (C1) who was late on numerous occasions was
allowed to make up her time at lunch. However, M1 disputes Complainant’s version of events
and states that she did not force Complainant to submit a leave form for being late. She
testified that when Complainant arrived at work on June 26, 2013, M1 inquired as to why she
was away from her work station and Complainant informed her that she was late. M1 then
expressed concern about the office being unmanned. A little later Complainant voluntarily
presented a leave slip, which M1 approved for unscheduled leave. As for Complainant's
allegation that she was treated differently on this occasion than C1, M1 testified that unless an
employee came up on a TACS error report and/or their tardiness created a work flow problem,
she generally would not know the employee was not at their desk at 8:00 a.m. and would not
request the employee to fill out a leave form.

We agree with the Agency in concluding that Complainant failed to present sufficient evidence
that she was subjected to unlawful hostile work environment. Even assuming that Complainant
proved that her allegations in fact occurred, the record does not establish that any of the
harassing conduct occurred because of the complainant's disability or her protected status as a
participant in EEO activity. Aside from the temporal proximity to the April 3, 2013 discovery
of Complainant’s disability and prior EEO activity, the record is devoid of evidence of
discriminatory or retaliatory animus on the part of either M1 or M2. Accordingly, we find
insufficient evidence to support a finding of discrimination/retaliation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the FAD.

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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 tends 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
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)

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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, Director
Office of Federal Operations

January 13, 2016
Date