EEOC Appeal 2019005641

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shanta M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 2019005641
Hearing No. 570-2018-00464X
Agency No. 6P-000-0007-17
DECISION
On July 25, 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
July 18, 2019, final order 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Maintenance Supervisor, EAS-17, at the Agency’s Facility Services facility in Washington,
District of Columbia.
On August 14, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her
to a hostile work environment/harassment on the bases of race (African-American), sex (female),
and age when:
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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1. 	On or about April 25, 2017, the Manager of Operating Services (Manager1)
accused her of plagiarizing entries in her Pay for Performance;
2. 	On an unspecified date, Manager1 told her that “Facilities was a man’s world” and
that “a woman should not manage the department;”
3. 	On 	unspecified 	dates, 	Manager1 	spoke 	to 	her 	in 	a 	condescending 	and
unprofessional manner;
4. 	On unspecified dates, Manager1 discussed her work performance with other co-
workers and asked them to monitor her start time; and
5. 	On unspecified dates, Manager1 stated that he was going to fire her.
The Agency accepted the complaint and conducted an investigation which produced the following
pertinent facts:
With respect to claim (1), Complainant alleged that, on or about April 15, 2017, Manager1 falsely
accused her of plagiarizing her entries from a co-worker (CW1), during her on her mid-year Pay
for Performance review. Complainant stated that Manager1 told her what the objectives would be
and, when she submitted her information, he informed her that she and CW1 could not have the
same entries.
Manager1 explained that Complainant submitted her mid-year accomplishments for the Pay for
Performance review after CW1. Following the review, Complainant submitted a complaint to his
manager, the Manager of Headquarters Facility Service (SES1). SES1 explained that Complainant
did not have a clear understanding of how Manager1 wanted mid-year review updates to be written.
SES1 believed Complainant worked with other supervisors who had similar objectives and
developed similar statements as to what they had accomplished at mid-year. Manager1 was
instructed to go back and re-write his comments to more accurately reflect Complainant’s
accomplishments.
With respect to claim (2), Complainant attested that, during a meeting in December 2016,
Manager1 told her that “Facilities was a man’s world” and that “a woman should not manage in
that department.” 	Manager1 denied meeting with Complainant and stating these things.
Complainant acknowledged that there were no witnesses to this alleged event.
With respect to claim (3), Complainant alleged that, from December 2016 to the present, Manager1
had spoken to her in a condescending and unprofessional manner, particularly in emails.
Complainant submitted emails in support of this allegation, including those relating to supplies
and purchasing, roaches/pest control, meetings, a blood pathogen program, grievance forms,
bathroom schedules. Manager1 denied sending Complainant condescending or unprofessional
emails.
With respect to claim (4), Complainant alleged that, in January 2017, Manager1 discussed her
performance objectives with the Manager of Maintenance Operations (Manager2) and told him to
monitor Complainant’s start time.

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Complainant also alleged that in March and/or April 2017, Manager1 told Manager2, the
Secretary, the IT Help Desk Assistant, and CW1 about her work performance plan and that, if
Complainant did not listen to Manager1, he was going to write her up. Manager1 explained that
Manager2 	was 	Complainant’s 	direct 	manager 	and 	they 	discussed 	Complainant’s 	work
performance, failure to follow instructions, and her attendance. However, he denied discussing
such matters with CW1, the Secretary, or IT Help Desk Assistant and they denied these alleged
conversations as well.
With respect to claim (5), Complainant alleged that Manager1 threatened to fire her in December
2016 and January, February and March 2017. She alleged that six co-workers (witnesses) heard
Manager1’s 	threatening 	comments 	in 	March 	2017. 	Manager1 	denied 	threatening 	to 	fire
Complainant and five of the six witnesses denied hearing him threatening to fire her. The
remaining witness attested that Manager1 yelled at and threatened everyone.
The record shows that Complainant reported that Manager1 was subjecting her to harassment and
the Agency conducted an investigation into the matter. An August 8, 2017 Initial Management
Inquiry Process memo indicates that Complainant alleged Manager1 created a hostile work
environment and harassed her, detailing nine alleged instances, some of which are included in the
instant complaint.
An August 11, 2017 report indicates that Complainant’s allegations were not substantiated. It
provides that the investigator determined that there was poor communication and a lack of
communication between 	Complainant and Manager1 	and this has 	contributed to a poor
relationship between them. The report recommends that Manager1 be required to attend training
in communications and receive counseling regarding his tone when communicating with
subordinates.
A November 9, 2017 Letter of Expectation for Communicating with Staff from the Manager of
Headquarters 	Facility 	Services 	to 	Manager1 	reiterates 	the 	investigation’s 	finding 	that
Complainant’s allegations of harassment were not substantiated but Manager1 had been directed
to take specific classes to improve communications. It also advises Manager1 to be professional,
respectful, and mindful of tone and not to raise his voice when speaking to staff.
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). 	Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and over Complainant's objections, issued a decision without a hearing on June 14, 2019. 	The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed. On appeal, Complainant reiterates her claim of being subjected to
ongoing harassment and asserts that a hearing is warranted.

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In response, the Agency argues that Complainant has failed to show that there is a genuine issue
of material fact or credibility such that the matter should have proceeded to a hearing and the
record supports the AJ’s finding in favor of the Agency. Therefore, the Agency requests that we
affirm its final decision.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). 	In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine"
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a
case can only be resolved by weighing conflicting evidence, issuing a decision without holding a
hearing is not appropriate.
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. While Complainant
has, in a very general sense, asserted that facts are in dispute, she has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that indicates
such a dispute.
For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Complainant has alleged the Agency subjected her to harassment, noting several alleged instances.
To establish a claim of 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).

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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 race, sex, or age. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.
Most of Complainant’s harassment allegations can generally be described as relating to either
managerial decisions, such as those relating to her mid-year review and her work performance
plan, or allegations of being spoken to or about, either in person or in emails, in a manner
Complainant found offensive or otherwise inappropriate. With respect to her disagreements with
managerial decisions, without evidence of an unlawful motive, we have found that similar disputes
do not amount to unlawful harassment. See Complainant v. Dep’t of Def., EEOC Appeal No.
0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and
the supervisor were because of personality conflicts and fundamental disagreements over how
work should be done and how employees should be supervised, and there is no indication that the
supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age);
Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general
workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant
do not rise to the level of harassment).
Additionally, with respect to Manager1 saying things to or about Complainant that she did not like
or otherwise speaking to Complainant in a displeasing manner, we find this also is insufficiently
severe or pervasive to have altered the conditions of Complainant’s employment. See Phillips v.
Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a
supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with
AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be
insufficient to state a harassment claim). We have reviewed the record and, while it suggests
Manager1 has demonstrated poor communication and managerial skills, it does not establish that
that the incidents at issue were based on Complainant’s race, age, and/or sex. Therefore, we find
Complainant’s allegations are insufficient to support her claim of discriminatory harassment.
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2020
Date