EEOC Appeal 2020000093

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joana C.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000093
Hearing No. 531-2017-00171X
Agency No. 4K-210-0123-16
DECISION
On August 21, 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
Administrative Judge’s July 1, 2019, final order 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. and 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 Review Clerk, PS-
07, at the Agency’s Frederick Post Office in Frederick, Maryland.
On October 11, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her
to discrimination on the bases of sex (female), age (56), and reprisal for prior protected EEO
activity when, on August 9, 2016, she was issued a Notice of Removal dated August 3, 2016, for
falsification of clock rings after being subjected to an investigation by the Agency’s Office of
Inspector General. In addition, Complainant alleged that she was discriminatorily harassed when:
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. 	since June 20, 2016, her clock rings had been altered;
2. 	since June 20, 2016, she had been required to perform different duties than her co-
workers;
3. 	since July 1, 2016, she had been required to use a PS Form 1260, Non-Electronic
Badge Reader Card, to document her time; and
4. 	since July 1, 2016, on a daily basis, she had been required to complete a PS Form
3971, Request for/or Notification of Absence, requesting not to take a lunch.
During the Agency’s investigation of the complaint, the following relevant evidence was
developed.
Complainant alleged that, beginning in June 2016, Supervisor1, Supervisor2, Supervisor3,
Supervisor4, and Postmaster altered her clock rings. She attested that, on June 27, 2016,
Supervisor2 entered a lunch ring for her, despite her not taking a lunch; on July 12 and 27, 2016,
Supervisor4 entered lunch rings for her, despite her not taking a lunch; and on many occasions,
Supervisor1 requested that she and other co-workers work their day off and they were instructed
to not “hit the clock” because day-off overtime was not authorized.
Supervisor1 generally explained that, per Agency policy, all employees were required to hit the
time clock to account for: the beginning and ending of their tour (shift); lunch rings, both in and
out; and for any moves to different operations within the Agency. However, he explained that most
of the time, he and the other supervisors at the Frederick Post Office would input the moves
employees made to other operations because the time clock was located a far distance from the
work area. He also attested that he entered Complainant’s end tours on the days that she worked,
giving her ten to 15 minutes to leave early, to account for the time it took her to open the building
prior to hitting the time clock. He also attested that supervisors would change employees’ end tours
when they had worked unauthorized overtime on their off days.
Supervisor2 and Supervisor3 each denied altering clock rings. Supervisor2 attested that he only
fixed clock ring errors when Complainant and other employees did not submit a PS Form 1260 or
PS Form 3971 stating “no lunch.” They explained that it was an employee’s responsibility to
submit a PS Form 1260 or PS Form 3971 if he or she does not take a lunch break or requests leave.
They also explained that employees were required to use the time clock before and after each tour
and when they take a lunch break.
Supervisor4 attested that fixing clock rings was a regular occurrence. He explained that, as a close
out supervisor, he is responsible for clearing clock ring errors and unauthorized overtime.
Postmaster attested that she was responsible for correcting a clock ring error for Complainant on
July 27, 2016, when Complainant submitted a PS Form 1260. She explained that there were
circumstances under which an employee would not utilize a time clock during their shift and this
would occur when the employee did not take a lunch break and, under these circumstances, per
Agency policy, the employee was required to use the clock or submit a PS Form 1260.

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She also explained that management could alter an employee’s clock rings to correct an error,
record leave, and authorize overtime.
Complainant alleged that, since June 20, 2016, she had been required to perform different duties
from her co-workers. She alleged that Postmaster required her to fill out a PS Form 3971 and a PS
Form 1260 daily, without being given a reason. She also alleged that she was told to take a lunch
daily, but Postmaster backed down after Complainant confronted her about it.
Postmaster attested that Complainant was required to submit the PS Forms 1260 and 3971 daily
because Complainant had accused management of cheating her and others out of time. Postmaster
also attested that Complainant was not required to take lunch every day.
Postmaster explained that generally a PS Form 1260 is used by employees to record time when the
time clock has not been used or if a clock ring error has occurred that requires correction. However,
Complainant was required to submit this form upon request for the purpose of minimizing
management inputs.
A 204B/Acting Supervisor explained that employees are required to submit a PS Form 3971 if
they do not take a lunch.
Postmaster explained that Complainant was required to submit a PS Form 3971 after she had
alleged that she was charged for a lunch when she did not take one. Postmaster further explained
that she required Complainant to submit this form when she did not take her lunch break to avoid
further errors. She stated that, prior to July 1, she did not require Complainant to submit this form
if she waived her lunch breaks.
Complainant was issued a Notice of Removal on August 9, 2016. Complainant attested that she
was escorted out of the building on August 17, 2016 and, on September 9, 2016, was in a non-pay
status. Documentation shows that Complainant was removed due to charges of falsification of
clock rings and unacceptable conduct, but she attested that she did not agree with her removal and
asserted that she did not do what she was accused of doing. She acknowledged that she was subject
to an OIG investigation prior to her removal concerning clock rings. 	Complainant alleged that
many other employees had perceived errors in their clock rings, but the investigation and
subsequent disciplinary action focused only on her.
Postmaster attested that Complainant was issued the Notice of Removal as a result of the OIG
investigation conducted from October 2015 through June 14, 2016, which provided evidence of
time and attendance fraud. Supervisor2 attested that, prior to being issued the Notice of Removal,
Complainant was subjected to a Pre-Discipline Interview (PDI) on July 14, 2016, for unacceptable
conducted and falsification of clock rings. A copy of the PDI is of record.

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An August 3, 2016 Notice of Removal signed by Supervisor2 with Postmaster as the Concurring
Official provides that Complainant was being removed no sooner than thirty calendar days from
the date of Complainant’s receipt of the notice. It indicates that the charge was unacceptable
conduct and falsification of clock rings.
The Notice provides that an OIG investigation revealed that Supervisor1 had been entering time
for Complainant while she was not in a work status, noting that, on nine separate occasions,
Complainant was observed leaving the Agency before her end tour and that her end tour times
were entered by Supervisor1. It provides that Complainant acknowledged that Supervisor1 often
input clock rings on her behalf that were inaccurate on multiple occasions, to ensure that
Complainant was paid for overtime. It also provides that she acknowledged that she left the facility
and Supervisor1 entered her end tour time after she was going and not in a work status. It provides
that, on July 19, 2016, a PDI was conducted with Complainant in the presence of a Union
Representative, which afforded Complainant the opportunity to address management’s concerns
regarding her leaving early on numerous occasions and being clocked out by Supervisor1.
The Notice provides that Complainant’s behavior and actions were in violation of Agency policies,
including those relating to falsification in recording time. It also provides that, under Agency
policy, any employee knowingly involved in such a procedure is subject to removal or other
discipline.
The record contains a copy of the OIG investigation report regarding activity in 2015 and 2016,
concluding that Complainant and Supervisor1 were complicit in the unauthorized alteration and
falsification of clock rings.
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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned
to the case granted the Agency’s May 31, 2018 motion for a decision without a hearing and issued
a decision by summary judgment in favor of the Agency on July 1, 2019.
When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the
AJ’s decision finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure.

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The U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 	In
ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but
rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-
moving party must be believed at the summary judgment stage and all justifiable inferences must
be drawn in the non-moving party’s favor. Id. at 255. 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 (1st Cir. 1988). A
fact is "material" if it has the potential to affect the outcome of the case. 	If a case can only be
resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not
appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact. Complainant was given ample notice of the Agency's motion for a decision without
a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity
to respond to such a statement, and the chance to engage in discovery. We find that, even assuming
all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained
below.
Harassment Claims
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 sex, age and/or prior protected
activity. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.
As an initial matter, regarding Complainant’s alleged basis of reprisal, Complainant asserted that
the Agency’s management was retaliating against her for two grievances she successfully pursued
in June 2012 and August 2014 in her capacity as Chief Shop Steward regarding the use of 204B
acting supervisors.

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The Postmaster and at least one of the supervisors involved in the instant EEO complaint were
aware of these grievances. The record, however, does not indicate that any allegations of
discrimination were raised in these grievances. Therefore, we conclude that Complainant is unable
to establish a prima facie claim of unlawful retaliation because there is no evidence that she
engaged in prior activity protected under the employment discrimination laws.2
Complainant’s harassment allegations can be described as relating requirements that she properly
document her time and attendance or being spoken to in a manner she found demeaning or
otherwise offensive. Regarding management altering of Complainant’s clock rings, management
explained that, while employees were responsible for entering their time, management would
change their clock rings to clear errors, record leave, or remove unauthorized overtime. Regarding
management requiring Complainant to document her time and attendance daily using the Agency’s
forms, the Agency explained that, ordinarily an employee is required to submit a PS Form 1260
or PS Form 3971 if he or she does not take a lunch break or requests leave, but Complainant was
requested to do so daily to minimize management’s inputs and to avoid errors. Beyond her bare
assertions, there is no evidence to support the allegation that her sex or age played any role in the
incidents at issue. While it may have been true that there was more scrutiny during the period in
question of Complainant’s clock rings or a requirement of stricter adherence to documentation of
things related to clock rings such as not taking lunch, several non-discriminatory factors appear
more likely to have caused any disparate treatment. First, Complainant had specifically
complained to management that she believed she had not been properly paid for all the time she
worked, resulting in the desire on the part of management to carefully document her time. More
significantly, it appears that there was a suspicion during this period that Supervisor1 and
Complainant were engaged in a pattern of falsifying some of her clock rings and the matter was
under investigation by the OIG. Thus, Complainant’s allegations, even if true, are insufficient to
support a claim that her sex or age played any role in the alleged harassing incidents.
Disparate Treatment Claim – Removal
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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, non-discriminatory reason for its actions. See Tex. 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
2 Complainant’s allegations more properly allege an unfair labor practice (retaliation for union
activity). It appears she also filed a grievance on her removal and was later reinstated through
arbitration, although without a back pay award.

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Complainant attested that she believed her sex was a factor in this matter because, as a woman,
she was the only one who had an OIG audit and a PDI and she was removed for these alleged
offenses. She also alleged that sex was a factor in her removal because of the perception of her
relationship with Supervisor1.She alleged age was a factor because, during her OIG interview, she
was asked whether she was able to retire.
Even if we assume that Complainant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. It is undisputed that starting in 2015 and continuing into this period of time,
Complainant and Supervisor1 (male, age 57) were the subject of an OIG investigation for time and
attendance fraud. 	During the pendency of the OIG investigation, Supervisor1 retired from the
Agency. The investigation eventually resulted in a finding that Complainant and Supervisor1 were
complicit in the unauthorized alteration and falsification of clock rings. As a direct result of the
OIG finding, Complainant was removed from the Agency. Although Complainant alleges that she
was discriminated against based on her sex or age, she has not established by a preponderance of
the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a
pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with
respect to these claims.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.
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.

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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. 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.

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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 16, 2020
Date