EEOC Appeal 2020000020

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vernia M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020000020
Hearing No. 450-2016-00097X
Agency No. 4G-760-0056-15
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 25, 2019, final order
concerning 	her 	equal 	employment 	opportunity 	(EEO) 	complaint 	alleging 	employment
discrimination in violation of 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 Rural Carrier at the
Agency’s City View Station in Fort Worth, Texas.
On July 27, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of age (55 years old at the time of the incidents in question) and in reprisal
for prior protected EEO activity (prior EEO Case).
By letter dated August 20, 2015, the Agency accepted Complainant’s complaint for investigation
and determined that it was comprised of the following claims:
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) 	Complainant was subjected to discriminatory harassment and being subjected to a
hostile work environment based on age and reprisal when:
a) 	Beginning in February 2015 and ongoing, [Complainant’s] co-workers ridicule
[her], hide [her] mail, and yell at [her] yet management does not intervene;
b) 	On April 22, 2015, and May 5, 2015, [her] co-workers placed derogatory notes
on [her] desk referencing [her] clothing and management took no action;
c) 	On April 3, 2015, [Complainant was] told[she] couldn’t scan packages in the
office yet other carriers are allowed to do so;
d) 	[Complainant] is regularly required to submit documentation for absences, yet
management does not require other employees to do so;
e) 	On April 8, 2015, [her] leave request was denied.
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.
On June 13, 2019, the AJ issued a Notice of Proposed Summary Judgment. Therein, the AJ set
forth that there appeared to be no issues of material fact or credibility to be determined by a hearing.
The AJ stated that Complainant has failed to produce evidence that the incidents supporting the
alleged harassment claim were due to her age or protected EEO activity. 	The AJ provided the
parties an opportunity to respond to her Notice. 	The Notice was mailed and emailed to
Complainant’s addresses of record.
On July 13, 2019, the AJ issued a decision without a hearing in favor of the Agency for the reasons
set forth in the AJ’s Notice of Proposed Summary Judgment.
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’s non-attorney representative states that at
the initial phone conference, he was designated as Complainant’s representative. 	However,
Complainant’s representative states he has not received any correspondence from the Agency or
the EEOC regarding this matter. Finally, Complainant’s representative reiterates that Complainant
has been subjected to unlawful harassment.
The Agency requests that we affirm its final action implementing the AJ’s decision without a
hearing finding no discrimination.

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ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and
must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of
fact” is one that a reasonable judge could find in favor for 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
“material” fact has the potential to affect the outcome of a case.
As an initial matter, we find that the AJ properly issued a decision without a hearing because there
is no genuine issue of material fact in dispute. 	To the extent, Complainant’s non-attorney
representative asserts that he did not receive correspondence from the Agency and the EEOC, the
record before us not contain a designation by Complainant of this representative in writing at the
hearing stage. Assuming arguendo that Complainant’s non-attorney representative was designated
by Complainant in writing during the hearing stage, we find that the AJ not including the non-
attorney representative on the Notice of Proposed Summary Judgement was harmless error. We
note that the AJ’s Notice of Proposed Summary Judgment was sent to Complainant’s address and
email address of record. 	The time limitation to respond to the AJ’s Notice is triggered from
Complainant’s receipt rather than a non-attorney representative.
We find that the AJ properly found that Complainant failed to establish a prima facie case of
harassment. To establish a claim of harassment a complainant must show that: (1) they belong to
a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their 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).
We find that the AJ properly found that Complainant failed to establish that the incidents at issue
were based on Complainant’s protected classes. 	Regarding claim 1(a), the record contains an
affidavit from the Manager, Customer Service (M1).

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Therein, M1 asserts that each time Complainant would bring forth a concern regarding the
suspected employee (C1), management would interview both employees but there was no direct
evidence to support Complainant’s claims and C1 would deny everything. The Agency noted that
C1 also does not get along with other employees. Report of Investigation (ROI) at 95-96.
Regarding incident 1(b), that notes were left in Complainant’s workspace, the record contains
copies of the notes in question. One of the notes stated “if you are going to wear clear white pants
put on colored underwear. 	You don’t wear white underwear under clear see thru pants.” 	The
second note stated “you are a grown woman you know better to wear white underwear under white
pants. Grow up.” M1 states that C1 was interviewed regarding this matter but that there was no
proof that C1 left the notes and C1 denied involvement. 	ROI at 97. 	M1 stated that if there is
sufficient evidence, it will take corrective action. M1 noted that C1 was issued corrective action
based on her misconduct with another employee because there was sufficient evidence. Id.
Regarding incident 1(c), Complainant not being able to scan packages in the office. M1, in his
affidavit, asserts that all employees have been placed on notice that they are not allowed to scan
mail in the office. M1 states that he observed Complainant scanning a piece of mail and that she
was placed on notice that this was not allowed. ROI at 98. M1 states that another employee was
given an official discussion for failing to follow instructions to not scan mail items in the office.
ROI at 99.
Regarding incidents 1(d) and 1(e), the record contains an affidavit from the rural carrier leave
coordinator during the time period in question. Therein, she asserts that Complainant submitted
two PS Forms 3971 with overlapping dates. The leave coordinator asserts that Complainant’s first
request was dated April 7, 2015 and had a request for 16 hours for July 10-July 11, 2015 and that
her second request was dated April 8, 2015 and requested 24 hours for July 8-July 11, 2015. The
coordinator stated that her requests were only denied to give her the opportunity to complete a
proper request. ROI at 119. The record reflects that Complainant was subsequently approved for
leave for the period in question. ROI at 135-136.
Based on the foregoing, we concur with the AJ that Complainant failed to establish that the
incidents at issue were based on Complainant’s protected classes. To the extent, Complainant, on
appeal, alleges that she is being subjected to new incidents of discrimination, she should contact
an EEO Counselor if she wishes to pursue these alleged new incidents through the EEO process.
Accordingly, we AFFIRM the Agency’s final action implementing the AJ’s decision without a
hearing finding no discrimination.

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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
September 23, 2020
Date