EEOC Appeal 2020001637

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Greta F., 1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020001637
Hearing No. 550-2018-00339X
Agency No. 4E-980-0078-17
DECISION
On January 6, 2020, 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
December 12, 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
During the period at issue, Complainant worked as a Letter Carrier, Q-01, at the Agency’s Bothell
Main Post Office in Bothell, Washington.
On August 3, 2017, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her based on sex (female), disability and age (57) when:
1. 	On April 16, 2017, she was accused of using the bathroom too often;
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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2. 	On April 24, 2017, she was referred to the Reasonable Accommodation Committee
without her request;
3. 	On May 10, 2017, she was issued a Letter of Warning for Failure to Follow
Instructions;
4. 	On May 19, 2017, she was accused of sitting at a traffic light for 10 minutes and
texting; and
5. 	On June 7, 2017, she was issued a 7-day suspension (reduced to an official
discussion).
After an 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. 	Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision by summary judgment on December 9, 2019. 	The Agency
subsequently issued a final order adopting the AJ’s finding of no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
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”).
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. 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,

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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.
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. While Complainant
has, in a very general sense, asserted that facts are in dispute, she has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that indicates
such a dispute. For the reasons discussed below, we find that, even construing any inferences raised
by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her
favor.
Disparate Treatment – Allegations 3 and 5
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 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 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 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 Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transportation, EEOC Request No.
05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No.
05900467 (June 8. 1990): Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
Even assuming arguendo that Complainant established a prima-facie case of discrimination on any
alleged basis, the record shows that the Agency articulated legitimate, non-discriminatory reasons
for the conduct at issue herein. 	The record reflects that Complainant was instructed to place
barcodes on her route and failed to do so. She was therefore issued a Letter of Warning for failure
to follow instructions. 	The record further reflects that while driving an Agency vehicle,
Complainant collided into the back of the car in front of her which resulted in the Agency’s
issuance of a 7-Day Suspension, later reduced to a letter of warning. Upon review we find that

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Complainant has failed to prove, by a preponderance of the evidence, that the Agency’s articulated
legitimate, non-discriminatory reasons for these incidents were pretext designed to mask unlawful
discrimination.
Harassment
Complainant also alleges that she was discriminatorily harassed and subjected to a hostile work
environment by a supervisory Agency official when she was accused of using the bathroom too
often, referred to the Agency’s Reasonable Accommodation Committee, issued a Letter of
Warning, issued a 7-Day suspension, and accused of sitting at a traffic light and texting.
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).
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, disability or age. Only
if Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.
With regard to the events comprising Complainant's harassment claim, we find that Complainant
fails to establish that she was discriminatorily harassed. In sum, beyond her bare assertions, there
is simply no evidence that Complainant’s sex, disability or age played any role whatsoever in the
events at issue. A case of harassment is precluded based on our findings that Complainant failed
to establish that any of the actions taken by the Agency were motivated by her protected bases.
See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we find that the AJ
properly issued a decision without a hearing finding no discrimination. The Agency’s final order
implementing that decision is AFFIRMED.

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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
August 31, 2020
Date