EEOC Appeal 2019005633

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marva M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2019005633
Agency No. 4G-760-0085-18
DECISION
On September 6, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 2, 2019 final decision concerning an 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Sales Services/Distribution Associate at the
Agency’s Petrolia, Texas Post Office.
On November 20, 2018, Complainant filed a formal EEO complaint alleging discrimination on the
bases of age (over 40) and in reprisal for protected EEO activity when:
1. on July 28, 2018, she was singled out in group emails;
2. since July 30, 2018, management ceased paying her out-of-schedule pay;
3. since July 30, 2018, she has not been provided with overtime opportunities;
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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4. during Pay Period 04-2019, her work hours were charged to Leave Without Pay
(LWOP);
5. on January 4, 2018, she was presented with multiple pay adjustment forms for
overpayment of Out-of-Schedule pay, which the Postmaster demanded that she sign;
and
6. since November 2018 and continuing, she has not been provided with the supplies
needed at her office.
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.
In accordance with Complainant’s request, the Agency issued a final decision on August 2, 2019,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.
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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); 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 (March 8, 1994).
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 a protected basis – in this case, her age or prior EEO activity.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself.
Regarding allegation 1, Complainant asserted that on July 28, 2018, she was singled out in group
emails.
The Postmaster (over 40) stated that, during the relevant period, she became concerned about
scans, and the topic of the importance of making timely scans was part of a group discussion that
included Complainant. The Postmaster acknowledged sending out a group email in which scans
were discussed “as a group on being on time and the importance of making timely scans – it was
addressed that [Complainant’s] scan was late, but it was not done to embarrass her.”

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Furthermore, the Postmaster stated that Complainant never addressed her concerns “about the
situation. If she had talked with me then I would have known that she felt this way.”
Regarding allegation 2, Complainant alleged that since July 30, 2018, management ceased paying
her out-of-schedule pay.
The Postmaster explained that the Supervisor of Customer Services was the management official
who stopped Complainant’s Out-of-Schedule (“OOS”) pay, but she and the Manager of Post
Office Operations were also involved in the decision. She explained that Complainant had
previously been the Postmaster of Petrolia office but as a result of a larger reorganization, “the
Petrolia office had become a Remotely Managed Post Office (RMPO) and Complainant became a
Non-Traditional Full Time (NTFT), but had two years to find another EAS position or she could
take a down grade.” Complainant chose to stay where she was and take the down grade. The
Postmaster stated that when the reorganization plan went into effect, the nationwide finance
entered times into TACS that did not actually reflected the employee’s schedules but in the
comment section, the correct schedule was noted. She asserted that Complainant believed that
because her time was different in TACS, she was entitled to OOS pay. The supervisor admitted
that during this period she was unfamiliar with the TACS process and she thought she did the
correct thing by paying Complainant’s OOS.
After researching the situation and trying to get TACS correct, the Postmaster realized that
Complainant was not entitled to the OOS pay. Thereafter, she discussed this matter with the union
and confirmed that Complainant did not have a grievance on this matter. The record reflects that
the agreement between the Agency and union provides in part that “NTFT employee will normally
work the number of hours daily and/or weekly) identified in their bid assignment, except in an
emergency. These employees are entitled to out of schedule premium for hours worked outside
their normal schedule.”
The Manager of Post Office Operations (Manager) (over 40) stated that the Postmaster notified
him that Complainant continued to enter her work hours in TACS. He stated that this function
should have stopped when Complainant “lost her position as postmaster and was given the Non
Traditional Full Time (NTFT) position as a result of Postplan when post offices were re-evaluated.
[Complainant’s] office was down sized and many functions she once performed as a member of
management was eliminated.2 Her unit was placed under the management of the Henrietta Post
Office, known as the Administrative Post Office (APO). The timekeeping functions became the
responsibility of the APO. However, [Complainant] continued to enter her own time [including
OOS] in TACS.” The Manager determined that Complainant took advantage of USPS based on
her premise that she was due OOS pay regardless of conflicting information on her PS Form 50.
Regarding allegation 3, Complainant alleged that since July 30, 2018, and other unidentified dates,
she has not been provided with overtime opportunities.
2 A fair reading of the record reflects that the term “Postplan” refers to the Agency restructuring
plan for post offices.

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The Postmaster stated that she was not aware of Complainant being denied overtime opportunities.
However, she noted that Complainant has been approved for overtime on numerous occasions to
mow the lawn and clean the facility.
Regarding allegation 4, Complainant claimed that during Pay Period 04-2019, her work hours were
charged to LWOP.
The Postmaster stated that according to the TACS records and the time submitted for Complainant,
there were no LWOP hours charged to Complainant.
Regarding allegation 5, Complainant asserted that on January 4, 2018, she was presented with
multiple pay adjustment forms for overpayment of OOS pay which the Postmaster demanded that
she sign.
The Postmaster stated that she and another Postmaster of the Agency’s Wichita Falls Post Office
went to Complainant’s office with pay adjustments to process overpayments for her to sign
concerning the OOS discussed above. The Postmaster stated that Complainant was asked to sign
the paperwork, but she refused to sign it. The Postmaster asserted that she and the Wichita Falls
Postmaster did not try to force Complainant to sign the paperwork
The Wichita Falls Postmaster (over 40) stated at that time he was a witness for the Postmaster. He
stated that he and the Postmaster explained to Complainant that the paperwork “was due to
unauthorized out of schedule premium that the employee were paying themselves. Again, no one
at any time demanded signatures.”
Regarding allegation 6, Complainant claimed that on since November 2018 and continuing, she
has not been provided with the supplies needed at her office.
The Postmaster asserted that Complainant was provided supplies needed at her office, and that
there were several supplies that took longer to receive “but as far as I know all supplies requested
has been provided.”
The image which emerges from considering the totality of the record is that there were conflicts
and tensions with her supervisors that left Complainant feeling aggrieved. However, the
discrimination statutes prohibit only harassing behavior that is directed at an employee because of
his or her protected bases. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar.
13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981). Here, the
preponderance of the evidence does not establish that the disputed actions were motivated by
discriminatory or retaliatory animus. Her claim of harassment is precluded based on our findings
that Complainant failed to establish that any of the actions taken by the Agency were motivated
by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept.
21, 2000).

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CONCLUSION
We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.3
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).
3 On appeal, Complainant does not challenge the May 14 and 20, 2019 partial dismissals issued
by the agency regarding one other claim (that she was discriminated against on the bases of age
and in reprisal for prior EEO activity when she was issued a Letter of Demand for $251.10 and
$861.88; and when she became aware that the Agency was deducting money from her paycheck
based on “Postal Indebtedness”). Therefore, we have not addressed these issues in our decision.

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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
June 16, 2020
Date