Sherita V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120172451 (E.E.O.C. Dec. 19, 2018)

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

Sherita V.,1
Complainant,

v.

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

Appeal No. 0120172451

Agency No. 1J-461-0013-14

DECISION

On July 10, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 29, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s
Indianapolis Processing and Distribution Center (P&DC) in Indianapolis, Indiana.2

Complainant worked in the Dual Primary unit under the supervision of a Supervisor, Distribution
Operations (“supervisor”). The supervisor’s scheduled days off were Saturdays and Sundays.
Another Supervisor, Distribution Operations (“SDO2”), who usually supervised a different unit,
supervised her supervisor’s unit approximately two days a month when the supervisor was
absent. SDO2’s scheduled days off were Sundays and Mondays. In addition to supervising his
own unit and occasionally supervising the supervisor’s unit, SDO2 worked in the Resource

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 record reflects that during the relevant period, Complainant retired on disability from
Agency employment.
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Management Office on attendance-related issues approximately seven days a month.
Complainant and SDO2 both worked on Thursdays, Fridays, and Saturdays.

On April 1, 2014, Complainant filed a formal EEO complaint claiming she was subjected to
harassment based on sex (female) by SDO2. Specifically, Complainant alleged the following
incidents of harassment:

1. Beginning in September 2013, on each day that that they both worked, SDO2 showed
up at her work area during her break/lunch/departure times, attempted to engage her
in conversation, and stared at her in an uncomfortable manner. Although
Complainant changed her break/lunch times and locations to avoid SDO2, he kept
showing up.

2. On an unspecified date, SDOS altered her leave requests (PS Form 3971) for August
8-9, 2013, to falsely indicate that she only requested sick leave. And that she had not
requested Family and Medical Leave Act (FMLA) leave. In a routing slip to
management dated October 23, 2013, Complainant requested that SDO2 not be
involved in any way with her leave requests. Management responded that SDO2
would continue to handle leave requests “whenever appropriate.”

3. On October 4, 2013, SDO2 verbally counseled Complainant about her attendance,
including her unscheduled absences on August 8-9, 2013.

Complainant alleged that SDO2 had previously engaged in similar harassing conduct toward her.
Specifically, Complainant asserted that in 2006 or 2007, when SDO2 was her supervisor, she
complained to a Manager, Distribution Operations about SDO2 stalking her, saying
inappropriate things to her, and paging her excessively. Complainant stated that the Manager
moved her to a different work area, but SDO2 shortly thereafter moved to the same work area
and renewed his harassment. Moreover, Complainant stated that SDO2’s harassment stopped
because she went on disability leave for approximately four years. However, she said that when
she returned to work in December 2012, SDO2 resumed his harassment in September 2013.

During the investigation, the EEO investigator asked Complainant if there were any witnesses to
the incidents. In response, Complainant stated that several of her co-workers had seen SDO2
watching her and provided the names of nine individuals. The investigator obtained affidavits
from Complainant, SDO2, the Manager, and a Labor Relations (LR) Specialist. The investigator
did not seek affidavits from anyone else.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision on
September 15, 2014, pursuant to 29 C.F.R. 1614.110(b).

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In its September 15, 2014 final decision, the Agency found no discrimination. Complainant
appealed to this Commission.

In Complainant v. United States Postal Service, EEOC Appeal No. 0120150160 (March 14,
2014), we vacated the Agency’s decision and remanded the matter to the Agency for a
supplemental investigation concerning Complainant’s harassment claim. Specifically, the
appellate decision determined that the record was not adequately developed to determine if the
Agency subjected Complainant to harassment on the basis of sex.

Specifically, the Agency was ordered to take the following actions:

1. The Agency will conduct a supplemental investigation to develop an adequate
factual record regarding harassment claim. The Agency will obtain all
pertinent evidence to address the harassment claim, including, but not limited
to:

a. a sworn affidavit from SDO2 about the history of his work relationship
with Complainant, including the allegations pertaining to 2006, 2007;
b. a sworn affidavit from the Manager, Distribution Operations (FMDO)
about the history of SDO2’s work relationship with Complainant,
including the allegations pertaining to 2006-2007;
c. any documentary evidence related to the allegations pertaining to
2006-2007;
d. sworn affidavits from the nine individuals named by Complainant as
eye witnesses to SDO2’s conduct in 2013-2014;
e. sworn affidavits from the individuals named by Complainant as people
she contacted (or attempted to contact) to report SDO2’s conduct in
2013-2014: Complainant’s supervisor, Lead Manager, Distribution
Operations (LMDO), Senior Manager, Distribution Operations
(SMDO), Plant Manager (PM), Union Representative (UR), Union
President (UP), and Postal Inspector (PI);3
f. a rebuttal from Complainant after she had an opportunity to review the
requested sworn affidavits and documents;

2. The Agency shall complete its supplemental investigation and issue a new
final decision, together with the appropriate appeal rights, within one hundred
and twenty (120) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time.

3 The record reflects that Complainant’s supervisor retired from Agency employment and did not
reply to the requested affidavit testimony. The record further reflects that the Transfer Clerk
(union official), Schedule Examiner Vehicle Runs (union official), and two Mail Processing
Clerks did not reply to the request for affidavit testimony.
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3. A copy of the Agency’s new final decision must be sent to the Compliance
Officer as referenced below.

In compliance with the Commission’s March 14, 2014 decision, the Agency conducted the
supplemental investigation and issued another final decision. In that decision, the Agency found
that the evidence of record did not establish that Complainant was subjected to harassment based
on sex.

The instant appeal followed. Complainant, on appeal, argued that the evidence in the record
“clearly shows that [SDO2] is a ‘Repeat Offender.’ The Agency sends the wrong messages…my
complaint was never properly investigated the second time.”

ANALYSIS AND FINDINGS

To establish a claim of discriminatory hostile environment harassment, 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 imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, to prove her harassment claim, Complainant must establish that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected basis – in this case, her sex.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. Here, as discussed below, Complainant simply has provided
inadequate evidence to support her claim that her treatment was the result of her sex.

SDO2 (male) asserted that in 2006-2007, he supervised the second floor dock and “it was an
open dock to all weather conditions and I could not leave the dock for any length of time because
we had trucks coming and going all night.” SDO2 stated that he only supervised Complainant 2
to 3 days a week and they did not have the same off days.

Complainant asserted that SDO2 began stalking her, saying inappropriate things to her and
paging her excessively. SDO2 acknowledged that he “periodically I paged her.” SDO2 stated
that he was given an Investigative Interview when Complainant complained to management that
he paged her.

SDO2 stated the following the investigative interview, he “seldom saw [Complainant] even
when I supervised her. She worked on the second floor checking ID badges and doing Safety
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checks and I supervised on the 1st floor manual letters of the Indianapolis P&DC until I moved to
the second floor.”

The former Manager, Distribution Operations (male) stated that he conducted the investigative
interview with SDO2 after Complainant complained about SDOS paging her excessively. The
former Manager stated that following the interview, it was determined that SDO2 paged
Complainant “to sign leave slips from absences and for safety service talks. She was not directly
in his pay location so needed to be paged when needed.” The former Manager asserted that
SDO2 was not moved into Complainant’s work area, rather he was moved to a different area.

The Lead Manager, Distribution Operations (LMDO) (male) stated that during the relevant
period, Complainant complained that she was being subjected to harassment by SDO2. The
Lead Manager stated that Labor Relations investigated Complainant’s allegations sometime in
2013-2014, and her allegations were “found to be insubstantial.”

Further, the Lead Manager stated that Complainant “tenaciously maintains that events with no
basis in fact where real and actual despite all evidence to the contrary presented to her by other
allegedly involved parties. While [SDO2] is an acting Attendance Control Officer, it is his job to
review and approve leave requests and he will continue to do so, but he conscientiously avoids
dealing with [Complainant] whenever possible to minimize her phobic reactions.”

The Senior Manager Distribution Operations (male) stated that Complainant “has not told me of
any complaint involving [SDO2] or any other person.”

The Postal Inspector (female) stated that she recalled Complainant “reporting what she felt to be
harassment by a truck driver there, but I don’t remember/recall her reporting harassment by
[SDO2].”

The Mail Processing Clerk (female), also one of Complainant’s union representatives,
maintained that Complainant “has alleged these allegations for years, from what she told me. I
personally have never witnesses any of the Complainant’s allegations coming from this
supervisor.”

As detailed above, Complainant has failed to provide sufficient evidence to call into question the
veracity of the explanations provided by responsible management officials or otherwise indicate
that these incidents more likely resulted from her sex. Complainant is unable to meet her burden
of proving a discriminatory motive regarding the incidents making up her claim of a hostile work
environment.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because
the preponderance of the evidence of record does not establish that discrimination occurred.

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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. Ha
Carlton M. Hadden, Director
Office of Federal Operations

December 19, 2018
Date