EEOC Appeal 2020000019

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anya F.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000019
Agency No. 1K-291-0064-18
DECISION
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 11, 2019 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 Full-Time Mail Processing Clerk at the
Agency’s Columbia Processing and Distribution Center in Columbia, South Carolina.
On December 23, 2018, Complainant filed a formal EEO complaint claiming that the Agency
subjected her to discriminatory harassment based on reprisal for prior protected EEO activity
(prior EEO complaints, union activities, and National Labor Board challenges) when:
2. 	on October 12, 2018, Complainant was not provided with an identification badge to
gain access to the building;
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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3. 	on November 1-5, 2018, Complainant was placed on Emergency Placement in an off-
duty status;
4. 	on November 12, 2018, management deleted Complainant’s clock rings;
5. 	on November 23, 2018, after reporting for duty, Complainant was instructed to go
home; and
6. 	on November 19 - 25, 2018, Complainant was charged with being absent without
official leave.
After the investigation of the accepted claims,2 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 (AJ) or a final decision within thirty days of receipt of the correspondence.3
Complainant did not respond.
On 	July 11, 	2019, 	the 	Agency issued 	the 	instant 	final 	decision, 	pursuant 	to 	29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment – Claims 3, 5, and 6
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 complainant to prevail, she
must first establish a prima facie 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. 	See McDonnell Douglas, 411 U.S. at 802; 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. 	See 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. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
2 The record indicates that Complainant’s formal complaint included an additional claim which
the Agency dismissed on procedural grounds. 	On appeal, Complainant does not dispute the
dismissal of this claim. Therefore, we need not address this claim further in our decision.
3 The report of investigation indicates that Complainant did not complete or submit an affidavit
to the EEO investigator.

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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.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, 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. 	See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Our review of the record supports that the Agency provided legitimate, non-discriminatory
reasons for its actions.
Claim 3 – Emergency Placement
Complainant indicated in the EEO Counselor’s report that she was forced to place herself on
emergency placement because she did not have access to the building after she returned to the
office in October 2018, and she could no longer wait outside in the cold and rain for her
employees to let her in.
The supervisor of distributions operations (“SDO”) denied that Complainant was unable to gain
access to the building. Consequently, SDO indicated that Complainant was charged leave
without pay (“LWOP”) from November 1 – 5, 2018. 	Complainant’s manager (“M1”) also
corroborated SDO’s testimony and indicated that in addition to an ID badge, employees were
also able to gain access to the building by using the telephone located next to the employee
entrance. M1 further clarified that Complainant placed herself on emergency placement and this
action was not directed by management.
Complainant’s first level supervisor (“S1”) indicated that he was aware that Complainant was
absence from work during the period at issue and was charged LWOP.
Both SDO and S1 indicated that they had no knowledge of Complainant’s prior EEO activity.
However, M1 indicated that she was aware of Complainant’s prior grievances and National
Labor Relations charges given Complainant’s position as a union representative.
Claim 5 – Instruction to Go Home
The manager of distribution operations (“MDO1”) denied sending Complainant home on the
date at issue. 	MDO1 explained that Complainant had determined that she was not feeling well
and that she was going home. 	MDO1 indicated that he requested that Complainant provide
documentation upon her return to work for absence.
MDO1 further denied any acknowledge of Complainant’s prior EEO activity.

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Claim 6 – Absent Without Leave (AWOL) Charge
SDO testified that Complainant was charged AWOL on November 21, 22, 24, and 25, 2018
because she was scheduled for work, but failed to report. 	SDO indicated that S1 was the
management official responsible for charging Complainant AWOL.
After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons 	for 	the 	disputed 	actions 	were 	a 	pretext 	for 	unlawful 	discrimination 	based 	on
Complainant’s reprisal for prior protected EEO activity.
Harassment: Claims 2 and 4
To establish a claim of discriminatory 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, 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 in reprisal for prior protected EEO activity. Only
if Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.
As an initial matter, Complainant’s claim of discriminatory harassment in claims 3, 5, and 6 are
precluded based on our findings above that Complainant failed to establish that any of the
actions taken by the Agency were motivated by her reprisal for prior protected EEO activity.
See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). We also find
that Complainant has failed to indicate that the Agency subjected her to discriminatory
harassment for the remaining claims at issue.
Claim 2 – ID Badge
Complainant explained in the EEO Counselor’s Report that S1 previously issued her a Notice of
Removal (NOR), she left the office on May 10, 2018, and she provided her badge to SDO.
However, Complainant indicated that her NOR was resolved through settlement negotiations and
she returned to the office on October 12, 2018. Although she returned to the office on October
12, 2018, Complainant indicated that management did not provide her an ID badge.

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SDO acknowledged that he had received Complainant’s ID badge in May 2018, and SDO
indicated that he gave Complainant’s badge and time card to M1. However, M1 denied that she
received Complainant’s ID badge when Complainant left the office on May 10, 2018. 	M1
testified that she was not responsible for providing Complainant an ID badge. 	Instead, ID
requests should be directed toward S1, and M1 instructed Complainant to notify S1 of her
request, and arrangements were made to issue Complainant an ID badge. M1 also noted that she
requested waiver of the fee typically incurred for ID badge replacement.
S1 indicated that he issued the NOR. 	However, S1 had no knowledge about who received
Complainant’s ID badge after she left the office in May 2018, and he had no knowledge of who
was responsible for providing Complainant an ID badge when she returned to the office in
October 2018.
The Human Resources Specialist (“HR Specialist”) explained that she was notified on November
1, 2018 that Complainant needed an ID badge and she instructed the Training Technician to
provide Complainant a replacement card by November 5, 2018.
Claim 4 – Deleted Clock Rings
Complainant explained in the EEO Counselor’s Report that she clocked in at 9.47 and clocked
out at 10.83 because she had provided union representation for another employee’s investigation
interview.
The manager of distribution operations (“MDO2”) acknowledged that Complainant had named
her in a prior EEO complaint and that she was the responsible official for deleting the clock rings
at issue. However, MDO2 explained that she deleted a begin tour time of 9.47 and an end tour
time of 10.83 for a total of 1.36 overtime hours because Complainant was not authorized to work
these hours. Specifically, MDO2 stated that she had a statement from S1 and the union president
that Complainant did not have authorization for the overtime at issue. MDO2 further explained
that she completed a form 1017-A to record the disallowed time and to provide Complainant
with information as to why the time was deleted. MDO2 indicated that she provided S1 a copy
of the 1017-form and S1 should have provided the form to Complainant.
A copy of a from 1017-A indicates that Complainant had 1.36 hours of disallowed overtime and
the record also includes copies of statements from the union president and S1 indicating that
Complainant was not authorized for the overtime hours at issue.
Considering these two claims, even if true, Complainant has not shown that retaliatory animus
motivated management’s actions towards Complainant. While the record lacks some clarity as to
which management officials were in possession of Complainant’s ID badge after she left the
office in May 2018, the record reflects that management responded to Complainant’s request and
Complainant received an ID. 	We acknowledge that the record is unclear why Complainant
incurred 	a 	delay 	in 	receiving 	the 	badge. 	However, 	the 	record 	nonetheless 	reflects 	that
Complainant’s request for an ID badge was processed.

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The record further reflects that Complainant’s time was deleted because she was not authorized
to work overtime on the date at issue. 	Without evidence of retaliatory animus motivating the
disputed actions, Complainant’s harassment claim must fail.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or
the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within 	thirty 	(30) 	calendar days 	of 	receipt 	of 	this 	decision. 	If 	the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or
brief must be filed together with the request for reconsideration. A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her
request and arguments to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC
20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 	In the
absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed
if OFO receives it by mail within five days of the expiration of the applicable filing period. See
29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. § 1614.403(g). 	Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party,
unless complainant files his or her request via the EEOC Public Portal, in which case no proof of
service is required.

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Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 23, 2020
Date