Stephanie K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

0120182528 (E.E.O.C. Nov. 5, 2019)

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

Stephanie K.,1
Complainant,

v.

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

Appeal No. 0120182528

Agency No. 4B-070-0185-17

DECISION

On June 28, 2018, Complainant 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
June 25, 2018, final decision 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to discrimination based on her disability and in reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at
the Agency’s Springfield Avenue Station in Newark, New Jersey.

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.
0120182528

2
On December 7, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of disability (physical) and in reprisal for prior protected
EEO activity when:

1. on August 18, 2017, management brought a customer on the workroom floor to discuss a
delivery issue with Complainant;

2. beginning on or about August 24, 2017 and continuing, Complainant was sent home early
due to no work available; and,

3. since August 24, 2017 and continuing, Complainant has been spoken to in an aggressive
manner, followed outside, not given personal space, threatened to be fired due to
attendance issues, and denied or delayed receiving attendance records.

The Agency accepted the claims for investigation. The investigative record reflects the following
pertinent matters relating to the subject claims.

On August 18, 2017, the Supervisor of Customer Service (S1) brought a customer onto the
workroom floor to discuss a delivery issue with Complainant. Complainant asserted that S1 made
it seem like she had the package. S1 testified that the customer’s package was missing, and they
were attempting to locate it. One coworker, stated that the exchange appeared confrontational, and
felt that S1 was unnecessarily rude. Another coworker stated that S1 routinely abused her authority
and unnecessarily berated employees, regardless of who they were.

Complainant was an unassigned regular, and did not carry a regular route. Complainant’s work
changed based on availability, and what was suitable. Complainant testified that she had an
effective reasonable accommodation in place. Complainant’s restrictions consisted of not carrying
mail over 10 pounds, taking a 10-minute break every hour, and no bending and twisting.
Complainant’s restrictions were also only to deliver to cluster boxes and buildings.

Beginning on or about August 24, 2017 and continuing, Complainant was sent home early due to
no work availability. Complainant asserted that S1’s reasoning of sending her home due to lack of
work was pretext. Complainant asserted that at least four other employees were given work, well
within her own restrictions, that she could have done, rather than be sent home. Complainant noted
that employees were sometimes even given overtime work for work she could have completed,
within restrictions, and on regular pay. Complainant asserted that S1 was still harboring resentment
towards her based on her prior EEO activity against her. S1, and another supervisor (S2), testified
that Complainant’s prior EEO activity had no influence on her being sent home when work was
not available. Both S1 and S2 testified that employees with restrictions were sent home whenever
work was unavailable.

Since August 24, 2017 and continuing, Complainant asserted that S1 spoke to her in an aggressive
manner, that she was followed outside, not given personal space, and threatened with termination,
and was denied, or delayed, requested attendance records.
0120182528

3
Complainant provided a few dates, with little details, but asserted that she could not remember
every incident. S1 has denied any of these events occurring.

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 EEOC Administrative Judge
(AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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.

CONTENTIONS ON APPEAL

Neither Complainant nor the Agency provided an appellate brief.

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 (EEO MD-
110), 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

Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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, n. 13; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder 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 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases.

0120182528

4
Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue
of whether complainant has shown by a preponderance of the evidence that the agency’s actions
were motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S.
711, 713-714 (1983).

Disability-Based Discrimination

In order to establish a prima facie case of disability discrimination under the Rehabilitation Act, a
complainant must demonstrate that she is an “individual with a disability” within the meaning of
the Act. An “individual with a disability” is defined as one who: 1) has a physical or mental
impairment that substantially limits one or more of the major life activities of such individual; 2)
has a record of such impairment; or 3) is regarded as having such an impairment. 29 C.F.R. §
1630.2(g). Major life activities include, but are not limited to, “functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i). The Interpretive Guidance to the regulations further notes that
“other major life activities include, but are not limited, to, sitting, standing, lifting, and
reaching.” 29 C.F.R. Part 1630 Appendix § 1630.2(j).

A qualified individual with a disability is an individual with a disability who satisfies the requisite
skill, experience, education, and other job-related requirements of the employment position such
individual holds or desires, and who, with or without reasonable accommodation, can perform the
essential functions of such position. 29 C.F.R. § 1630.2(m).

Under the Commission’s regulations, federal agencies may not discriminate against individuals
with disabilities. The Agency is required to make reasonable accommodation for the known
physical and mental limitations of qualified individuals with disabilities, unless the Agency can
show that reasonable accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2
(o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002
(Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400
(December 3, 2015). Reasonable accommodation may include making facilities accessible, job
restructuring, modifying work schedules, and other similar actions. Dennis v. Department of
Education, EEOC Appeal No. 0120090193 (June 15, 2010); Spence v. Nuclear Regulatory
Commission, EEOC Appeal No. 0120041082 (August 2, 2007), request for reconsideration
denied, EEOC Request No. 0520070907 (July 9, 2008).

Unlawful Harassment

Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is
examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994).
0120182528

5
To establish this claim, a 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.

The Supreme Court in Harris explained that an “objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive” and the complainant
subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently
severe to trigger a violation must be determined by looking at all the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.” Id. at 23.

A hostile work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the
complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc.,
523 U.S. 75, 78 (1998).

With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for
harassment when it is created by a supervisor with immediate (or successively higher) authority
over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Reprisal

Complainant also alleges that the Agency retaliated against her. In accordance with the burdens
set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No.
05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

Analysis

Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant
established a prima facie case of discrimination2, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions.

2 We presume, for purposes of analysis only and without so finding, that Complainant is an
individual with a disability.
0120182528

6
Here, Complainant asserted that she was purposefully sent home for a supposed lack of work, even
though there was plenty of work within her restrictions that she could have completed.
Complainant asserted that four individuals were often given work she could have completed.
Complainant noted that those individuals were sometimes even provided overtime pay in order to
complete work she could have completed at regular pay. However, aside from loosely asserting
that she could have completed such work, Complainant failed to provide details of such events that
would demonstrate that the work could have been available within her restrictions. Management
stated that Complainant, like others with restrictions, would be sent home if there was a lack of
work within restrictions. There is no evidence to demonstrate that the Agency or responsible
management officials acted with discriminatory or retaliatory animus when Complainant was sent
home due to lack of work. Nor is there evidence that the work completed would have necessarily
been suitable to Complainant’s restrictions.

Scheduling employees is a routine managerial action, which, absent discriminatory animus, will
not be second-guessed by the Commission. Agencies generally have broad discretion to carry out
personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request
No. 05960403 (Dec. 6, 1996). It is clear from the record that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions which Complainant has failed to show were pretext for
discrimination. While Complainant may not agree with the business reason behind an action, a
subjective dislike is not sufficient to demonstrate discriminatory motive. Complainant must
demonstrate that the articulated reasons are mere pretext for discrimination.

Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin
W. v. Dep’t of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question
is not whether the agency made the best, or even a sound, business decision; it is whether the real
reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext
for intentional discrimination is insufficient because subjective belief, however genuine, does not
constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were
motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was
motivated by prohibited discrimination. Complainant has failed in this regard.

Regarding Complainant’s claim of a hostile work environment claim, we find that none of the
examples provided, alone or all together, provide evidence of a pervasively hostile work
environment. For example, Complainant asserted that S1 subjected her to a hostile work
environment when S1 brought a customer to the workroom floor and harassed Complainant about
a missing package. Complainant also asserted that S1 often invaded her personal space, spoke
aggressively at her, delayed providing records, and threatened her with termination for attendance
issues. The record does not support Complainant’s assertion of a hostile work environment. What
is clear is a contentious relationship between not just S1 and Complainant, but S1 and several of
her subordinates. We note that the discrimination statutes are not a civility code. What is prohibited
is “behavior so objectively offensive as to alter the conditions of the victim’s employment.”
Oncale, 523 U.S. at 81. We are mindful that the discrimination statutes do not create a right to
work in a pleasant environment, merely one that is free from unlawful discrimination.
0120182528

7
As a result, employees may even experience unprofessional, inappropriate, and disrespectful
treatment, but that is not the same as discriminatory harassment.

In the instant matter, the record demonstrates that the incidents, even if occurred as portrayed, do
not demonstrate that Complainant was subjected to a hostile work environment, or discrimination.
In sum, the evidence does not support a finding of discrimination on any basis, the presence of
discriminatory animus, or the existence of a hostile work environment. The Commission notes
that a finding of a hostile work environment is precluded by our determination that Complainant
failed to establish that any of the actions taken by the Agency were motivated by discriminatory
animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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.
0120182528

8
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)
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
Carlton M. Hadden, Director
Office of Federal Operations

November 5, 2019
Date