EEOC Appeal 2019005775

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mui P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 2019005775
Hearing No. 550-2015-00285X
Agency No. 1F-901-0139-14
DECISION
On September 12, 2019, 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
April 15, 2019 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler
Assistant at the Agency’s Los Angeles International Service Center in Los Angeles, California.
On November 29, 2014, Complainant filed an EEO complaint alleging that the Agency subjected
her to hostile work environment harassment on the bases of race (African-American) and sex
(female) when, between August 13, 2014 and September 18, 2014, the Supervisor of Distribution
Operations (S1) bullied, reassigned, stalked, and made inappropriate comments to Complainant,
and then threatened Complainant with removal. The Agency accepted Complainant’s complaint
for investigation.
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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During the EEO investigation, S1 stated that she did not bully Complainant and Complainant
misconstrued her warnings that some of her actions were removable offenses as threats or
harassment. S1 stated that she was attempting to get Complainant to adhere to postal rules and
regulations. Further, S1 stated that Complainant did not speak to her when she spoke to her, and
Complainant’s attendance became unsatisfactory due to unscheduled absences. S1 stated that
Complainant did not want to participate in an investigative interview related to her absences. S1
stated that there was an incident, on August 15, 2014, during which Complainant yelled at her and
acted like she wanted to hit her. S1 stated that she asked if Complainant could work at another
facility the next day, as a cooling off period, just in case she acted as she did on August 15. S1
acknowledged, one day, she asked Complainant whether she was wearing a “thong” because it
was against postal dress policy as they can be visible when bending over. S1 acknowledged that
she could have worded her dress policy inquiry differently. S1 stated that Complainant was never
investigated regarding her improper behavior because she accused S1 of harassing her and that
was investigated.
The record contains a Letter of Warning (LOW) dated October 9, 2014, charging S1 with
“Unacceptable Conduct” toward subordinate employees. Regarding Complainant’s contentions
of harassment, the LOW stated “It was determined most of [Complainant’s] allegations were
baseless and [S1] had not harassed or threatened [Complainant.]” However, the Agency found S1
made “inappropriate comments” to Complainant when inquiring about her wearing a thong and
S1 failed to support her contention with corrective action.
Following the EEO investigation, 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). Complainant requested a hearing, but the assigned AJ later remanded the complaint to the
Agency, citing Complainant’s failure to respond to correspondence and communication. 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. The instant
appeal from Complainant followed.
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”).
To establish a claim of harassment 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

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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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find
that Complainant failed to prove, by a preponderance of the evidence, that the actions complained
of were based on race or sex. Agency management stated it attempted to get Complainant to
adhere to postal rules and regulations and to inform her about potential offenses worthy of
disciplinary action. Further, management stated that Complainant’s attendance became
unsatisfactory due to unscheduled absences. Also, management stated there was an August 2014
incident during which Complainant yelled at her supervisor and acted like she was going to hit
her. Management stated that it sought a temporary reassignment of Complainant as a cooling off
period for that incident. Also, management acknowledged that its inquiry about whether
Complainant was wearing appropriate undergarments pursuant to dress policy could have been
handled differently. Management stated that Complainant was never investigated regarding her
improper behavior. We conclude that a finding of harassment is precluded by our determination
that Complainant failed to establish that the Agency’s actions were motivated by discriminatory
animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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.

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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.
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.

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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
May 7, 2020
Date