Adah T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 24, 2016

0120142645 (E.E.O.C. Aug. 24, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adah T.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142645

Agency No. 1G-321-0020-14

DECISION

Complainant filed an appeal from the Agency’s June 18, 2014, 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. The Commission deems the appeal timely and accepts it for de novo review.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Clerk at the Processing and Distribution Center in Macon, Georgia.
On January 22, 2014, Complainant filed an EEO complaint in which she alleged that the
Maintenance Operations Supervisor (MOS), the Distribution Operations Supervisor (DOS) and
the Acting Plant Manager (APM) discriminated against her on the bases of race (African-
American), sex (female), and color (Black) by issuing her a letter of warning on December 13,
2013. At the conclusion of the ensuing investigation, the Agency provided Complainant with a
copy of the investigative report (IR) and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). 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), in which it concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

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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The MOS issued Complainant a letter of warning dated December 13, 2013, for failure to
maintain a regular work schedule. The letter and the pre-disciplinary interview worksheet
documented 48 hours of unscheduled leave that Complainant had taken between November 10
and November 19, 2013. IR 158-61. The DOS and the APM both averred that they were not
involved in issuing the letter of warning. IR 147, 154. The letter of warning was reduced to
an official discussion as a result of a grievance settlement on January 3, 2014. IR 161.

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 cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that the MOS, the DOS, and the APM
were motivated by unlawful considerations of her gender, color, or race when they issued her
the letter of warning on December 13, 2013. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000). She may do so by presenting evidence tending to show that
the reasons articulated by those officials for reprimanding her were pretexts, i.e., not the real
reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S.
502, 515 (1993).

When asked by the investigator why she believed that her race and sex were motivating factors
in her receiving the letter of warning dated December 13, 2013, Complainant identified a white
male comparative employee who she said was constantly out sick but was not given a letter of
warning or otherwise disciplined. IR 93-94. The MOS and the APM averred, however, that
they did not know the comparative. IR 139, 155. As previously noted, the DOS and the APM
averred that neither one had any input into issuing the letter of warning. When asked why she
believed that her skin color was a factor in the decision, Complainant averred that as she was
entering the break room, a white male colleague who was leaving the break room said to her
that, “they don’t like you because of your color.” IR 94. Apart from her own assertions,
however, Complainant has not presented any sworn statements from other witnesses or
documents that contradict the MOS’s explanation for the letter or the DOS’s and APM’s
statements that they were not involved in the disciplinary measure. Likewise, she has not
presented any evidence that calls the veracity of any of those officials into question.
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Ultimately, we agree with the Agency that Complainant has not proven that race, color, or sex
played any role in the issuance of the letter of warning.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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

August 24, 2016
Date