EEOC Appeal 2020000127

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janay K.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020000127
Hearing No. 450201700480X
Agency No. 4G752006617
DECISION
Complainant appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s July 29, 2019 Final
Order concerning an 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. 2
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.
2 The Agency’s “Motion to Dismiss” on the grounds that Complainant’s September 5, 2019 appeal
was untimely filed because she received its final action and notice of her right to appeal on July
29, 2019, over 30 days before, is DENIED. Where there is an issue of timeliness, "[a]n agency
always bears the burden of obtaining sufficient information to support a reasoned determination
as to timeliness." 	Guy, v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). The
Agency can meet its burden by offering evidence of the complainant’s “actual receipt” of the notice
containing the deadline to file. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No.
0120140083 (Feb. 11, 2014). An Agency cannot rely on tracking information containing only a
generalized reference to city and zip code to prove receipt by Complainant. See Complainant v.
United States Postal Serv., EEOC Appeal No. 0120140438 (Mar. 6, 2014), Complainant v. Dep't
of the Army, EEOC Appeal No. 0120140066 (May 29, 2014), recon. den., EEOC Request No.
0520140487 (Jan. 29, 2015). Here, the Agency attempts to support its motion with a delivery

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BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a City Carrier Assistant (probationary) at the Agency’s Colony Post Office, located in The Colony,
Texas.
On March 20, 2017, Complainant filed an EEO complaint alleging discrimination and a hostile
work environment/harassment by the Agency on the bases of race (Black, African-American), sex
(female), color (Brown), and reprisal for prior protected EEO activity when:
1. 	On December 3, 2016, she was sexually harassed,
2. 	On December 8, 2016, she was not paid for hours worked,
3. 	On December 23, 2016, she received an unsatisfactory evaluation, and was
instructed not to report to work until notified via phone, and,
4. 	On January 9, 2017, she was notified that she was terminated.
After investigating the complaint, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity
Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte that the record was
sufficiently developed so that the complaint did not warrant a hearing. On June 11, 2019, he issued
a Notice of Intent to Issue Summary Judgement, providing the parties with an opportunity to
respond. The AJ issued a decision without a hearing on July 11, 2019.
The record includes (but is not limited to) the following undisputed facts:
Complainant was hired subject to a 90 day probationary period, set to conclude on January 29,
2017. Her first level supervisor (“S1,” male, African-American) was a Floor Supervisor/
Supervisor, Customer Services, EAS-17. Her second level supervisor (“S2,” female, black,
African-American) was the Station Manager/Manager, Customer Service, EAS-20.3
On December 3, 2016, Complainant was preparing for her mail route and realized she needed an
arrow key. S1 told her she could find one in the accountable cage.
confirmation print-out for July 29, 2019, containing a USPS Tracking Number, and the city, state,
and zip code of Complainant’s address of record, but no specific address. With only a generalized
reference to Complainant’s address, the Agency fails to meet its evidentiary burden to show “actual
receipt.” We deem Complainant’s appeal timely for purposes of this Decision.
3 Complainant was hired at another facility on October 29, 2016 where she completed onboarding
and training, then transferred to the Colony Station about a month later.

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When Complainant went to the accountable cage for the key, S1 was already there, and went to
hand her the key. By Complainant’s account, when she held out her hands to accept the key, S1
grabbed them, and said “I promise it will get better.” Complainant quickly turned and left without
saying anything, as S1’s action made her feel very uncomfortable. S1 denies physically touching
Complainant, but acknowledges that he told her “it will get better,” explaining that he meant to
encourage Complainant since she was new to the job.
On December 23, 2016, Complainant met with S1 for her 60 day evaluation, and received
“unsatisfactory” on nearly all of the factors without explanation. S1 allegedly told Complainant to
leave and not to return to work until instructed to do so. Complainant believed that S1’s actions
were in part because she would not “embrace [S1] in a personal relationship.” S1 testified that he
based Complainant’s evaluation on her consistently poor work performance, and denies instructing
her not to report to work.
On December 27, 2016, after Complainant did not report to work for two days, and was a “no call
no show,” S2 emailed the Human Resources Manager (“HR”) at the Agency’s Dallas District
Office requesting to release Complainant during her probationary period. The email cites
“insubordination and failure to follow instructions” as its reason for the request. It also recounts
Complainant’s absences, and an incident on December 23, 2016 where Complainant was
insubordinate, disruptive, and left the facility in a rage. HR granted S2’s request on December 30,
2016.
Also on December 27, 2017, Complainant emailed the Post office Operations Manager (“POOM”).
She recounted the alleged incident with S1 on December 3, 2016, as well as several other (non-
contact) situations where S1 made her feel irritated or uncomfortable. This was the first time she
disclosed the alleged harassment to an Agency management official. 	On January 9, 2017 the
POOM initiated an internal investigation of the matter, and ultimately, the Agency determined that
there was insufficient evidence that harassment occurred.
Also on January 9, 2017, the Agency terminated Complainant’s employment during her
probationary period. S2 was the deciding official for Complainant’s termination, with HR as the
concurring official. Complainant, who had not been to work since December 23, 2016, contends
that she was terminated as retaliation for reporting the incident where S1 grabbed her hands to
management. Also on January 9, 2017, the POOM initiated an investigation of Complainant’s
sexual harassment allegation in the December 27, 2017 email she sent him.
The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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

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(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 	In
rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s Final Order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
In order 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. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that the
agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of
Complainant, a reasonable fact-finder could not find in Complainant’s favor.
Pursuant to 29 C.F.R. § 1614.109(e), the AJ has the power to regulate the conduct of a hearing.
Additionally, the AJ has full responsibility for the adjudication of the complaint. EEO MD-110,
Ch. 7 § III(D). This responsibility gives the AJ wide latitude in directing the terms, conduct, or
course of EEOC Administrative hearings. Douglas F. v. Equal Employment Opportunity
Commission, EEOC Appeal No. 0120122183 (Dec. 4, 2015) (citations omitted).
On June 11, 2019, the AJ issued a Notice of Intent to Issue Summary Judgment, which provided
Complainant and the Agency until June 26, 2019 to respond as to whether or not a genuine dispute
of material fact existed to warrant a hearing. The AJ submitted a response in favor of summary
judgment on June 24, 2019. According to the AJ’s June 28, 2019 Decision, Complainant did not
submit respond in a timely manner.
On appeal, Complainant asserts that the AJ erred in issuing a decision without a hearing without
considering her response submission. Complainant states that she timely submitted a response by
email to both the Agency and the AJ at 5:57 PM on June 25, 2019, which fell within the AJ’s stated
deadline of June 26, 2019. 	She also states that she confirmed with the hearings clerk that her
response was received prior to the deadline. However, she does not offer any supporting evidence
of timely submission, such as a copy of the email transmitting her response to the AJ. 	As
Complainant has not shown that her response was timely, we find no error by the AJ.
Disparate Treatment
Claims 2, 3, and 4 are discrete actions because they involve a term or condition of employment.
Because a discrete action states a claim outside of the framework of a harassment analysis, it can
also be reviewed within the disparate treatment context. See Moylett v. United States Postal Serv.,
EEOC Appeal No. 0120091735 (Jul. 17, 2012), Sedlacek v. Dep't of Army, EEOC Appeal No.
0120083361 (May 11, 2010), other citations omitted.

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A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or 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; 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. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
With respect to Claim 2, the Agency provided evidence contradicting Complainant’s allegation.
Records from the Agency’s timekeeping system (TACS) establish that S1 manually input
Complainant’s work hours for December 8, 2016, so that she would get paid. The Agency also
provided a legitimate nondiscriminatory reason for any delay in payment. Complainant forgot to
punch out on December 8, 2016, and did not submit a PS Form 1260 to S1, to manually enter into
TACS. S2 explained that time card employees, such as Complainant, are responsible for punching
in and out at the beginning and end of their shift and when moving to different operations, and if
they fail to do so, they may submit a Form 1260 to their supervisor to document their time.
Complainant has not offered any evidence that a question of material fact exists regarding whether
or not she was paid for the work she did on December 8, 2016.
With respect to Claim 3, the Agency’s legitimate nondiscriminatory reason for S1 rating
Complainant’s performance as “unacceptable” on each of the factors for her 60 day review, was
that Complainant’s performance was at an “unacceptable” level. S1 testified that the 60 day
evaluation was the first time he rated Complainant, and that “part of her evaluation was
unsatisfactory.” The record contains Complainant’s Employee Evaluation/Probationary Report
(Form 1750), where the 30 day evaluation is blank, and the 60 day review, time stamped December
23, 2016, consists of mostly “unsatisfactory” ratings and notes that Complainant refused to sign.
S1 failed to sign the Form 1750, and did not provide any notes to elucidate what about
Complainant’s performance was unsatisfactory.

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However, although the Agency’s proffered evidence to support the December 23, 2016 evaluation
is minimal, Complainant has not provided any contradictory evidence to establish pretext, or to
connect the rating to her protected categories.
The Agency denies the other allegation in Claim 3, that on December 23, 2016, Complainant was
told to stay home until called back to work. Complainant testified that S1 and S2 “informed [her]
to clock out and they would call [her] to return due to lack of work on that particular day.” She
also testified that she was told “not to report to work until notified via phone.” S1 and S2 testify
that they did not tell Complainant not to come to work. S2 further testified that there was “no
shortage” of work, as the Agency “was in the midst of Christmas peak season (and all hands on
deck were needed).” The record reflects that Complainant was scheduled to work on December
24, 2016 and for the week of December 27, 2016. Other than her own assertion, that on December
23, 2016, S1 and S2 told her not to come to work, Complainant has not offered any evidence, to
support that she was instructed not to come in to work, nor has she shown that question of material
fact exists on this matter to warrant a hearing.
With respect to Claim 4, it is well established that a probationary employee, such as Complainant,
may be terminated at any time based on her work performance or conduct during the probationary
period under Office of Personnel Management (“OPM”) regulations. See 5 C.F.R. § 315.804, see
also Harmon v. Dep’t of Commerce, EEOC Appeal No. 01A33155 (Sept. 11, 2003). Consistent
with these regulations, the Commission has long held that probationary employees are “subject to
retention, advancement, or termination at the discretion of an agency so long as these decisions
are not based on a protected category.” Tristan W. v. United States Postal Serv., EEOC Appeal
No. 0120152084 (Jul. 11, 2017) citations omitted, see also Chadwick S. v. Dep’t of Homeland
Sec., EEOC Appeal No. 0120152446 (Dec. 8, 2017) (affirming summary judgment decision
accepting termination within the complainant’s probationary period consistent with federal and
agency regulations).
The Agency demonstrates that Complainant’s termination during her probationary period was
consistent with its policies. Section 365.323 of its Employee and Labor Relations Manual (“ELM”)
states that the Agency can initiate separation of probationary employees, at any time, “when it
becomes apparent that the employee lacks the capacity for efficient service.” Under ELM Section
665.4 failure to remain in regular attendance is a removable offense. In addition, an employee who
is absent without permission, and who fails to provide their manager with a proper reason
supported by evidence, will be marked “AWOL” In emergencies, the supervisor or proper official
must be notified of the inability to report as soon as possible.
The Agency’s legitimate nondiscriminatory reasons for terminating Complainant’s employment
during her probationary period are Complainant’s work performance and her conduct. As
previously stated, evidence of Complainant’s work performance is minimal. As for conduct,
Complainant’s attendance alone is sufficient to support the Agency’s decision to terminate her
employment for conduct reasons.

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The Commission has previously found attendance to be a legitimate nondiscriminatory reason to
terminate an employee’s employment during the probationary period. Morales v. United States
Postal Serv., EEOC Appeal No. 01A62014 (Oct. 26, 2006) (Failure to notify/contact an employer
about her absence in a timely manner, and AWOL for nearly two weeks, the complainant stated
but did not offer evidence, or even the name of the individual spoke with). Here, Complainant was
absent for a total of 17 days with no response, starting December 24, 2016, through her termination
on January 9, 2017. S2 testified that Complainant was a “no call no show” for her scheduled work
days of December 24, 27, 28, 29 and 30, 2016, so her attendance was recorded as Absent Without
Leave (“AWOL”). 	Complainant has not shown a question of material fact exists regarding her
conduct to warrant a hearing.
Harassment/Hostile Work Environment
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 motivated by retaliation for prior protected activity, and/or discrimination based on her sex,
race, and color. Only if Complainant establishes both hostility and motive, will the question of
Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982),
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors,
EEOC Notice 915.002 (Jun. 18, 1999).
Complainant cannot meet the “motive” requirement for Claims 2, 3, and 4 because we determined
that the Agency provided legitimate nondiscriminatory reasons for its actions in these claims in
the disparate treatment analysis. Therefore, Complainant’s harassment claim consists of the
alleged action in Claim 1 only.
As with Claim 1, where harassment does not result in a tangible employment action, the employer
may prove an affirmative defense comprised of two elements: (1) that the employer exercised
reasonable care to prevent and correct promptly any harassing behavior, and (2) that the employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise. Mayer v. Dep’t of Homeland Sec., EEOC Appeal No.
0120071846 (May 15, 2009) citations omitted.
Viewing Claim 1 in a light most favorable to Complainant, S1 caused a scenario where he and
Complainant were together in a separate, more confined space, with dimmer lighting, that, while
visible to the rest of the floor, was relatively isolated. When Complainant held her hands out to
receive a key, S1 “grabbed” both of her hands, and told her, “it will get better,” surprising her and
making her physically uncomfortable. While the Agency is dubious about Complainant’s
“insistence” that sex played a factor in the physical contact, we would defy the Agency to produce
an instance where S1 grabbed both hands of a newly hired male subordinate in a confined,
relatively isolated, space as a gesture of “encouragement.” Regardless of S1’s intent, we find that
a “reasonable person” could have found the physical contact by a supervisor in that context hostile
or abusive.

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However, we do not find the harassing action in Claim 1 so severe or pervasive as to create a
hostile work environment, because it consists of an isolated incident. The Commission has
repeatedly found that claims of a few isolated incidents of alleged harassment usually are not
sufficient to state a hostile work environment claim. See Phillips v. Dep’t of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health & Human Serv., EEOC Request
No. 05940481 (Feb. 16, 1995).
Even it Complainant could establish that Claim 1 constituted a hostile work environment, she could
not establish Agency liability. The Agency provided Complainant with its harassment policies,
and Complainant offers no evidence that Management knew or should have known of the
harassment before she raised the issue herself on December 23, 2017. The Agency also
demonstrated that it “exercised reasonable care to prevent and correct promptly any harassing
behavior” by conducting an internal investigation on the alleged harassment in Claim 1 upon
receiving Complainant’s allegation. Further measures were not necessary, as Complainant did not
return to work. It bears noting that an agency is not required to refrain from non-discriminatory
personnel actions it would otherwise take simply because the employee has engaged in EEO
activity. See, e.g., Sotomayer v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006)
(finding complainant failed to prove discrimination as alleged despite the “suspect timing” of
Complainant’s March 	10, 2002 termination for unsatisfactory conduct after Complainant
contacted the EEO Office alleging harassment on February 27, 2002) citing Carter v. Dep’t of Ed.,
EEOC Appeal No. 01842314 (Aug. 25, 1986).
Having thoroughly reviewed the record and the Parties’ contentions on appeal, including those not
specifically addressed herein, Complainant has not established discrimination as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision.

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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
athttps://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).

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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
November 17, 2020
Date