EEOC Appeal 2020001675

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Takako Y.1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020001675
Hearing No. 560-2019-00036X
Agency No. 1E-641-0018-18
DECISION
On December 11, 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
November 12, 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. 	For the following reasons, the
Commission AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented herein is whether Complainant has shown by a preponderance of the evidence
that the Agency subjected her to a hostile work environment and discriminated against her based
on her protected classes and in reprisal for prior protected activity.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler
Technician at the Agency’s Processing and Distribution Center in Kansas City, Missouri.
On April 16, 2018, Complainant filed an EEO complaint2 alleging that the Agency subjected her
to a hostile work environment and discriminated against her on the bases of race (African-
American), sex (female), and reprisal for prior protected EEO activity when, on November 7,
2017,3 Complainant was threatened by a coworker (CW1, female, African American, under 40)
and physically attacked by the Supervisor of Distribution Operations (RMO14, male, Black, over
40). Subsequently, on January 10, 2018,5 Complainant was issued a Notice of 7-Day Suspension.
The investigative record reflects the following pertinent matters relating to the subject claims.
Complainant asserted that RMO1, the Manager of Distribution of Operations (RMO2, male,
Caucasian, over 40), the Supervisor of Distribution Operations (RMO3, female, African American
Indian, over 40), and another Manager of Distribution of Operations (RMO4, female, African
American, under 40) subjected her to a hostile work environment and discriminated against her
based on her protected classes and in reprisal.
On November 7, 2017, CW1 allegedly verbally assaulted Complainant by purportedly stating,
“bitch, I’m going to kick your ass, get out of here.” Complainant asserted that she did not initially
respond, but then acknowledged calling CW1 a “bitch” and stating, “go ahead and kick my ass.”
Complainant asserted that RMO1 then ran over, grabbed her wrist, and pushed her away.
Complainant contacted the Postal Inspection Service after the incident.
CW1 stated that Complainant initiated the incident and attempted to lunge at her before RMO1
intervened. CW1 acknowledged that she and Complainant were involved in a verbal altercation
that led to physical separation because Complainant attempted to hit her. CW1 asserted that RMO1
did not grab or push Complainant or her. 	However, RMO1 stood in between them and
Complainant made contact with RMO1 when she (Complainant) attempted to hit CW1.
2 The record demonstrated that at the informal stage of the complaint process Complainant raised
the following issues: on September 8, 2017, her job was abolished, and, on January 9, 2018, she
received a collection notice from the Agency. Complainant previously did not include these issues
in her formal complaint, and therefore these claims were not accepted for investigation. However,
the claims were considered as part of the overall harassment claim by the Agency.
3 Parts of the record mistakenly referred to this date as November 7, 2018.
4 Responsible Management Official (RMO).
5 The Notice of 7-Day Suspension was dated December 22, 2017, and signed by management on
January 10, 2018.

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RMO1 stated that Complainant and CW1 engaged in a verbal altercation on November 7, 2017,
that led to a physical separation. RMO1 stated that he did not intentionally grab or push
Complainant and that any physical contact was due to him blocking Complainant’s attempts to hit
CW1. RMO1 stated that he stepped in to separate both employees and informed both to return to
work. Statements from several employees attest to this version of events.
On December 5, 2017, the Postal Inspection Service initiated an investigation into the November
7, 2017 incident based on Complainant’s inquiry. The Postal Inspection Service interviewed
several individuals present at the time, including RMO1, and CW1.6
By letter dated December 22, 2017, Complainant was issued the Notice of 7-Day Suspension based
on the Agency’s zero tolerance policy on workplace violence. The Suspension noted that
Complainant engaged in Unacceptable Conduct in violation of Agency policy and regulations. The
Notice of 7-Day Suspension was later reduced to a Letter of Warning with a one-year retention
during the grievance process. CW1 was also issued disciplinary action based on the November 7,
2017 incident.
Complainant asserted that the entire situation was a conspiracy against her by management
following her previous sexual harassment complaints against another coworker (CW2) and her
prior EEO complaints against management. The record demonstrated that Complainant had filed
numerous EEO complaints against management but that none of the ones named in the current
complaint.
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.
However, on October 4, 2019, the AJ remanded the complaint to the Agency for issuance of a final
agency decision (FAD) due to Complainant’s failure to comply with judicial orders.
The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant asserted that RMO1 went around and asked his subordinates to write a statement in
his favor. Complainant asserted that since those employees worked under RMO1 their statements
were unreliable. Complainant noted that she had two colleagues write statements on her behalf but
did not see mention of them in the Agency’s decision. Complainant asserted that management
conspired to make it appear as if she was the type of person who would incite violence in the
workplace.
6 Complainant initiated the Postal Inspection Service complaint. There is no indication why she
was not interviewed further after her initial call.

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Complainant also asserted that she had previously filed a sexual harassment complaint against
CW2 and she believed this made her a target amongst management. Complainant asserted that
being subjected to a hostile work environment caused her to have a mental breakdown and forced
her into disability retirement.7
The Agency did not provide an appellate brief.
STANDARD OF REVIEW
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”).
ANALYSIS AND FINDINGS
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 Corp. 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 Constr. 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 Dep’t of Cmty. 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 Ctr. 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. 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
7 Complainant’s appellate statement of constructive discharge was not part of her informal
counseling or formal complaint. This was raised for the first time on appeal, therefore, we will not
consider it here.

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motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714
(1983).
For her claim of reprisal, Complainant must show 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).
Here, even if we assume, arguendo, that Complainant has established a prima facie case of
discrimination and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for
its actions. 	In this incident, Complainant and CW1 engaged in a loud verbal altercation on
November 7, 2017. Several witnesses, both for Complainant and the Agency, who were present
attested that Complainant and CW1 were loudly arguing. The record demonstrated that RMO1 had
to stand in between them to physically separate the two employees. During this brief altercation,
Complainant attempted to lunge at CW1 and made physical contact with RMO1. Following the
incident, Postal Inspection Services investigated the incident and provided its findings to
management. Both employees received disciplinary actions for their respective roles in the
altercation. Management officials stated that the disciplinary action was determined based on the
Agency’s zero tolerance for workplace violence.
The Agency denied basing its decision on Complainant’s protected classes or in reprisal.
Complainant argued that the entire incident was a conspiracy by management for her prior EEO
complaints against CW2 and other management officials. As one example of how this was a
conspiracy against her, she noted that the Agency’s final decision made no indication that it spoke
with two of her witnesses. The record demonstrated that both of Complainant’s witnesses made
statements, and that that they were considered by the management officials when the Notice of a
7-Day Suspension was considered.
As the employer, the Agency has broad discretion to determine how best to manage its operations
and may make decisions, including personnel decisions, on any basis except a basis that is unlawful
under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978);
Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to
make its own business judgments. The reasonableness of the employer's decision may, of course,
be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation,
not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other
words, it is not the function of this Commission to substitute its judgment for that of management
officials who are familiar with the needs of their facility, and who are in a better position to make
decisions, unless other facts suggest that proscribed considerations of bias entered the decision-
making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996),
citing Bauer at 1048.
Based on the record, there is no evidence in the record to demonstrate that management’s actions
were motivated by discriminatory or retaliatory animus.

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Unlawful Harassment
In her harassment claim, in addition to the incidents discussed above, Complainant generally
alleged that management subjected her to a hostile work environment when it conspired against
her following her sexual harassment complaints against CW2, and her EEO complaints against
other management officials. We find that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), that Complainant's claim of a hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). 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 sex. Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself.
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 Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 	As already
concluded above, there is no evidence to support a finding that Complainant’s protected bases or
EEO activity played any role whatsoever in the Agency’s actions. Moreover, the responsible
management officials provided legitimate, non-discriminatory explanation for its actions. For
example, that there was a necessity for RMO1 to physically separate Complainant and CW1, and,
that disciplinary action was warranted given the circumstances. In sum, Complainant failed to
prove that her protected classes or EEO activity played any role in the incidents she proffered as
evidence of her harassment claim.
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 final order finding no
discrimination.
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.

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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.
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.

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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
October 26, 2020
Date