EEOC Appeal 2020000208

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jayna A.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 2020000208
Agency No. 4B-110-0096-17
DECISION
On August 21, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 3, 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 Letter Carrier at the Agency’s Maspeth, New
York Post Office.
On August 28, 2017, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to unlawful retaliation for engaging in protected EEO activity when:
1. 	on May 17 and 23, 2017, the Supervisor, Customer Services harassed her by
commenting on Complainant’s pants being too tight, told her that her nail polish was
too bright, and criticized her for taking gloves out of a desk;
2. 	on June 14, 2017, she was issued a Letter of Warning; and
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.

2020000208	2
3. 	on July 10, 2017, she was put on Emergency Placement in an Off-Duty Status and
subsequently, on August 1, 2017, she was issued a Notice of Removal.
On September 3, 2019, the Agency issued a final decision based on the evidence developed during
its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful
retaliation was established.
The instant appeal followed. Complainant did not submit a timely brief on appeal.
ANALYSIS AND FINDINGS
Harassment – Claim 1
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).
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 prior EEO activity. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.
During the period at issue, Complainant worked as a Letter Carrier at the Agency’s Maspeth, New
York Post Office. Complainant identified the instant complaint as the basis for her retaliation
claim. She stated that her supervisor, the Supervisor of Customer Service (“S1”), was aware of
her EEO activity on June 14, 2017, because on that day she told him that he was harassing her and
that she was going to file an EEO complaint.2 She said he told her to go ahead and do so. In 2015,
Complainant had filed a prior EEO complaint (identified as Agency No. 4B-110-0118-15) that she
withdrew that same year. However, S1 was not involved in that complaint and there is no evidence
that he was aware of it.
2 The record shows that Complainant had already initiated EEO counseling on May 31, 2017, at
this point. However, she does not allege that S1 was aware of her activity until she told him on
June 14.

2020000208	3
In allegation 1, Complainant asserted that on May 17 and 23, 2017, and another unspecified date,
the Supervisor, Customer Services (“S1”) commented on her pants being too tight, told her that
her nail polish was too bright, and asked her if she was taking gloves out of a desk when other
employees were allowed to do so without permission.
S1 stated that at that time, he had been Complainant’s supervisor for about four months. 	He
asserted that he did not make a comment that Complainant’s pants were too tight. The supervisor
stated while he does not recall the date, he acknowledged making a statement “jokingly in front of
her shop steward and one of her co-worker about her nail polish. That was the only time I ever
made such a comment to her…I treat all carriers alike, respectfully.”
However, even if the events alleged in claim 1 occurred as represented by Complainant, there is
no evidence that these events occurred as a result of unlawful retaliation. 	Complainant did not
inform S1 that she intended to seek EEO counseling until after the incidents comprising her
harassment claim. 	Therefore, she cannot establish retaliatory animus played any role in these
incidents. As such, she has failed to establish even a prima facie case of retaliatory harassment
with regard to claim 1.
Disparate Treatment: Claims 2 and 3
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, he
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. 	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).
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).

2020000208	4
In allegation 2, Complainant alleged that on June 14, 2017, she was issued a Letter of Warning.
S1 stated he and the Manager, Customer Service saw Complainant at the accountable cage
scanning accountable mail that should have been scanned at the time of delivery or attempted
delivery. S1 explained that “every accountable is scanned in and logged in the morning.
Everything with a bar code becomes “live” once it is scanned in the office. [Complainant] did not
attempt to notify the customer of attempted delivery, which would have stopped the clock of the
accountable. When the carrier has an accountable, he/she should knock on the customer’s door
and deliver it or attempt to deliver it. Once the customer signs for the accountable or an attempt
to deliver is made, the carrier scans it, which stops the clock of the live accountable; [Complainant]
failed to do this.” Complainant admitted she missed some accountable mail on the date in question,
but explains that it occurred because she was assigned to a route (#8) she was not familiar with.
The Manager, Customer Service stated that on June 14, 2017, she issued Complainant a Letter of
Warning for Failure to Follow Instructions, Delay of First Class Mail, and Falsifying Scans. The
record contains a copy of the June 14, 2017 Letter of Warning in which the Manager stated that
on May 10, 2017, Complainant was assigned to one of her float bid assignments, route 8, and “at
no time on this day did you ask for obtain permission to scan your accountable mail pieces at any
other time other than the actual delivery. You returned back to the station at around 4:05 pm but
actually moved on the clock at 4.20 units. 	You scanned 10 of your accountable mail prices at
16.08 after you returned and mark it redelivery for the next day.”
Finally, the Manager stated in the Letter of Warning that it was designed, “to inform you that you
must work to correct your deficiencies. 	You must demonstrate adherence to Postal rules and
regulations. 	Please be advised that a failure to correct your deficiencies may result in further
disciplinary action being taken against you, up to, and including your discharge from the Postal
Service.”
In allegation 3, Complainant alleged that on July 10, 2017, she was put on Emergency Placement
in an Off-Duty Status and subsequently, on August 1, 2017, she was issued a Notice of Removal.
The Acting Manager, Customer Service (“Manager 1”) acknowledged placing Complainant on
Emergency Placement on approximately July 13, 2017, after being notified by his manager that
Complainant had been arrested by the New York Police Department and the Office of Inspector
General “due to an incident that occurred about one month before and her ID was taken from her.
I found out the details after the fact, that she had stolen a customer’s bag on her route.”
The Acting Manager, Customer Service Operations (“Manager 2”) stated that he was the
concurring official regarding Complainant’s removal. 	He stated that he watched a video of
Complainant removing a bag from a customer’s business and placing it in her mail satchel and he
concurred with the removal “because the Complainant had committed a crime.”

2020000208	5
The record contains a copy of the August 1, 2017 Notice of Removal in which Manager 1 and
Manager 2 placed Complainant on notice that she will be removed from the Postal Service no
sooner than 30 days from receipt of this notice for Conduct Unbecoming a Postal Employee and
Larceny. The two managers stated that on July 5, 2017, a postal customer went to the Maspeth
Post Office to ship several packages and during his visit, he asked to speak to Complainant’s
supervisor. 	Specifically, the customer told the supervisor that on June 28, 2017, his personal
property was had been stolen from his business and that the property “consisted of a Gucci bag
valued at 500 dollars. The bag also contained 500 in cash. [Customer] stated that he had already
contacted NYPD detectives concerning the theft, and supplied [supervisor] with footage obtained
from security cameras located [street information provided].”
Further, the two managers asserted that the security footage clearly showed Complainant
“nonchalantly taking [customer’s] hand bag, and placing it into the mail satchel on your cart. You
continued walking, and leaned into the barbershop without showing them the bag. 	You then
walked past the barber shop, apparently distracted by your act of larceny, without delivering the
mail to that address. At the last moment, after being alerted by one of the occupants in the shop,
you took the mail for the barber shop out from your mailcart, where it was positioned adjacent to
the stolen bag, and brought it into the shop. At no time did you attempt to show the bag to the
shop owner, or attempt to leave it with them, should the rightful owner return.”
Manager 1 and Manager 2 further noted that the customer only wanted to have his property
returned and did not wish to press criminal charges against Complainant. 	Thereafter, the
supervisor explained the allegations made against Complainant by the customer and Complainant
told the supervisor that she did not wish to speak with him concerning the stolen property. The
supervisor informed Complainant that the customer was willing to wait 24 hours to have his
property returned or he was going to press charges against her. 	The two Managers noted that
Complainant called in sick on July 7 and 8, 2017, when in fact Complainant was in police custody
on July 7, 2017. They noted that the customer has not had his property returned to him.
Manager 1 and Manager 2 stated that on July 25, 2017, they conducted an investigative interview
with Complainant and her union representative. 	They asked Complainant several questions
concerning the bag that she took and she responded to all of the questions with “you have to contact
my attorney…You were entirely uncooperative throughout the interview. 	I offered you.” 	The
managers offered Complainant the opportunity to resign which she declined.
Manager 1 and Manager 2 determined that Complainant had committee “one of the most
[egregious] acts that a Postal employee can commit. 	Your actions have caused disgrace to the
Postal Service, and to your fellow employees…your actions outlined in the above charges are in
complete contravention of the above rules and regulations. Your actions are very serious in nature.
Your actions cannot and will not be tolerated. Therefore, your removal from the Postal Service is
warranted.” Moreover, they stated that their decision to issue the Notice of Removal did not have
anything to do with Complainant’s prior protected activity.

2020000208	6
We determine that the record abundantly reflects that the Agency articulated legitimate and non-
discriminatory reasons for its actions as addressed in detail above, which Complainant has not
shown were a pretext designed to mask any unlawful retaliatory motivation behind the disciplinary
actions taken against Complainant.
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 (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).

2020000208	7
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 14, 2020
Date