EEOC Appeal 2020000678

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stormy M.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000678
Agency No. 1K-302-0092-18
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 27, 2019, final
decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
ISSUE PRESENTED
The issue is whether Complainant established if the Agency subjected her to discrimination or
harassment based on her sex, or in reprisal for protected EEO activity, when it allegedly denied
her overtime; denied her opportunities to be an Acting Supervisor; and allegedly failed to address
her harassment complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Vehicle Dispatcher
at the Agency’s Processing and Distribution Center in Atlanta, Georgia. Complainant stated that
since May 2018, she had not been called for overtime. Complainant stated that overtime was
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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normally rotated, and that the Manager Transportation Networks (MTN) (female), her first-line
supervisor (S1) (male), and another supervisor (S2) (male) did not call Complainant, and instead,
called other employees for overtime. Complainant stated that MTN failed to have her act as a
“204(b)” supervisor, and that the most recent occurrence was June 15, 2018. Complainant stated
that another supervisor (S3) previously asked Complainant to be a 204(b), but that MTN asked a
coworker (CW1) to work in this capacity. Report of Investigation (ROI) at 68,70.
Complainant stated that on June 14, 2018, a different coworker (CW2) “pinned” her in her work
area; yelled that Complainant did not know her job; and told her to leave. Complainant stated that
she reported the incident to S1, and that he took no action to address the matter. ROI at 69.
EEO Complaint
On October 25, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her
to discrimination and harassment based on her sex (female) and in reprisal for prior protected EEO
activity when:
1. 	since May 2018, on dates to be provided, she was denied overtime;
2. 	on June 15, 2018, and other dates to be provided, she has been denied the
opportunity to work as an Acting Supervisor; and
3. 	on or about June 14, 2018, and other dates to be provided, after reporting that CW2
had threatened and/or harassed Complainant, management failed to properly
address the matter.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of her right to request a hearing before an EEOC Administrative Judge. When
Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f),
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The Agency found that Complainant established a prima facie case of retaliation and assumed that
she established a prima facie case of sex discrimination. The Agency then found that management
officials 	articulated 	legitimate, 	nondiscriminatory 	explanations 	for 	their 	actions, 	and 	that
Complainant did not show that the reasons were pretext for discrimination. The Agency stated that
Complainant made unsubstantiated assertions that management officials were motivated by
discriminatory animus, and she did not provide any witness statements, documentary evidence, or
other evidence to show discrimination.
2 Initially, the Agency accepted Complainant’s complaint only alleging retaliation. ROI at 32-5.
During the investigation, Complainant alleged sex discrimination for claim 1, but not for claims 2
or 3. ROI at 68-9.

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For Complainant’s harassment claim, the Agency found that, assuming Complainant was subjected
to unwelcome conduct, the record was devoid of evidence that management’s conduct was based
on her protected classes. In addition, management officials testified that Complainant did not
report that she believed that she was subjected to a hostile work environment. The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.
Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency
did not respond to Complainant’s appeal.
CONTENTIONS ON APPEAL
Through her attorney, Complainant argues that she produced facts sufficient to show, by a
preponderance of the evidence, that she was discriminated against based on her sex and in
retaliation for protected EEO activity, and that the Agency’s conduct created a hostile work
environment. Complainant asserts that the Agency did not state a legitimate business reason for its
actions. For claim 1, Complainant states that she worked significantly fewer hours of overtime
than her two male comparators, and that the difference was based on her sex and in retaliation for
her EEO activity. Complainant argues that S1’s response that Complainant worked as much
overtime as her comparators is untrue.
Regarding claim 2, Complainant asserts that from May 27, 2018, through June 15, 2018, MTN
“replaced” her as an Acting Supervisor with CW1 in retaliation for her EEO activity. Complainant
argues that MTN’s statement that she did not recall a request for a supervisor during that timeframe
is not credible. For claim 3, Complainant states that S1 did not contest that Complainant reported
the harassment and that he did not take action. Complainant asserts that S1’s decision to ignore
her complaint of CW2’s harassment was retaliatory. Complainant requests that the Commission
reverse the Agency’s decision and find in her favor.
ANALYSIS AND FINDINGS
Standard of Review
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 Chap. 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”).

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Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
sex and in reprisal for prior EEO activity, we find that the Agency proffered legitimate,
nondiscriminatory reasons for its actions. For claim 1, MTN stated that she was not involved in
the overtime schedule, and S2 stated that S1 was responsible for Complainant’s overtime. ROI at
91,129. S1 stated that overtime was not guaranteed, and that Complainant works as much overtime
as other dispatchers. S1 stated that he did not recall a time when Complainant was denied overtime.
ROI at 106. Regarding claim 2, MTN stated that a regular supervisor has to be off work, and
another supervisor unable to cover the absence, in order for an employee to act as a supervisor.
MTN stated that she did not recall Complainant making a request to act as a supervisor from May
27, 2018, through June 15, 2018. ROI at 94-5. For claim 3, S1 stated that he did not recall if
Complainant informed him about the June 14, 2018 incident. ROI at 113.
We find that Complainant has not shown that the proffered reasons were pretext for discrimination.
Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the
Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 	(Nov. 	20, 	2007) 	(finding 	that 	the 	agency’s 	explanations 	were 	confusing,
contradictory, and lacking credibility, which were then successfully rebutted by the complainant),
request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal,
Complainant argues that S1’s response that Complainant worked as much overtime as her named
comparators is untrue. However, we find that S1 made a general statement about Complainant’s
overtime hours, but he specified that the named comparators work on Tour 3, while S1 works on
Tour 1, and that he cannot speak on the overtime worked by the comparators. ROI at 107-8.
Complainant confirmed that the named comparators reported to S3, and not S1. ROI at 71. For
claim 2, Complainant argues that MTN’s statement that she did not recall a request for a supervisor
during that timeframe is not credible.

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However, Complainant did not provide any evidence to show that MTN’s statement was not
credible. In addition, while Complainant alleges that MTN “replaced” her with CW1, Complainant
stated that CW1 was a supervisor, which supports MTN’s statement that she asks other supervisors
to act, prior to asking employees. ROI at 72.
Regarding claim 3, Complainant asserts that S1 did not contest her assertion that she reported the
harassment and that S1 did not take action. However, S1 only stated that he did not recall if
Complainant reported the alleged harassment, and we find that S1 did not confirm that
Complainant reported the incident to him and that he took no action. ROI at 113. We find there is
no evidence to support Complainant’s assertion. For example, while Complainant named CW1 as
a witness for claim 3, CW1 denied witnessing S1’s failure to properly address Complainant’s
complaint that she was harassed on June 14, 2018. ROI at 153. Complainant did not show, by a
preponderance of the evidence, that S1 was informed that Complainant was allegedly harassed by
CW2 and took no action. Accordingly, we find that Complainant did not establish that the Agency
discriminated against her based on her sex, or in reprisal for prior EEO activity, when it allegedly
denied her overtime; denied her opportunities to be an Acting Supervisor; and allegedly failed to
address her harassment complaint.
Harassment
As discussed above, we found that Complainant did not establish a case of discrimination on any
of her alleged bases. Further, we conclude that a case of harassment is precluded based on our
finding that Complainant did not establish that any of the actions taken by the Agency were
motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923
(Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected
her to harassment based on her sex or in reprisal for protected EEO activity.
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 finding that Complainant
did not establish that the Agency subjected her to discrimination or harassment based on her sex
or, in reprisal for protected EEO activity, when it allegedly denied her overtime; denied her
opportunities to be an Acting Supervisor; and allegedly failed to address her harassment complaint.
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.

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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.
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.

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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 10, 2020
Date