Allegra P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 15, 2018

0120170280 (E.E.O.C. Mar. 15, 2018)

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

Allegra P.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120170280

Hearing No. 551-2015-00037X

Agency No. 4E-980-0037-14

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated September 16, 2016, finding no discrimination
regarding her 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. For
the following reasons, we AFFIRM the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a City Carrier Assistant (CCA), Level 01, Tour II, at the Edmonds-Perrinville Post Office in
Edmonds, Washington. On June 4, 2014, Complainant filed her complaint alleging
discrimination based on sex (female) and age (over 40) when:

(1) On unspecified dates, her postmaster discriminated against her for being too slow;

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) The postmaster never discussed her work performance or had any discussions with her
regarding her performance deficiencies;
(3) On unspecified dates, the postmaster publicly criticized her in an unpleasant manner; and
(4) On February 13, 2014, she became aware that she was not being reappointed to the
position of CCA.

Complainant indicated and the record indicates that she subsequently returned to her CCA
position on July 12, 2014, with back pay and was converted to a Full-Time Regular City Carrier
position via a grievance settlement.

On August 15, 2014, the Agency dismissed claims (1) and (3) due to untimely EEO Counselor
contact. Specifically, the Agency stated that Complainant indicated that the alleged incidents in
claim (1) occurred on April 13 and May 29, 2013, and claim (3) on November 7, 2012 and April
3, May 29, and December 2013. Thus, indicated the Agency, Complainant’s EEO Counselor
contact regarding the subject matters on February 18, 2014, was beyond the 45-day time limit set
by the regulations.

The Agency investigated accepted claims (2) and (4). Upon completion of the investigation of
the complaint, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). On September 1, 2016, the AJ issued a decision
without holding a hearing, finding no discrimination regarding claims (2) and (4). The Agency’s
final order implemented the AJ’s decision. Complainant appealed the Agency’s final order.

ANALYSIS AND FINDINGS

Initially, we note that in its December 22, 2016 brief, the Agency indicates that Complainant’s
appeal briefs dated December 6, 9, and 12, 2016, were untimely since they were beyond the
requisite time limit after her October 20, 2016 appeal. Our records indicate that on December 9,
2016, Complainant filed a request for an extension to file her appeal brief. On December 13,
2016, our office granted Complainant’s request and extended her brief filing deadline until
December 23, 2016. Thus, we find that Complainant’s appeal briefs, cited above, are timely
filed and will be considered in this decision. 29 C.F.R. § 1614.403.

Claims (1) and (3):

Upon review, we find that the Agency properly dismissed the alleged incidents described in
claims (1) and (3) due to untimely EEO Counselor contact. The record indicated that the alleged
incidents occurred from November 7, 2012, to December 2013, but Complainant did not contact
an EEO Counselor until February 18, 2014, which was beyond the 45-day time limit set by the
regulations. 29 C.F.R. § 1614.107(a)(2). Complainant failed to present adequate justification to
warrant an extension of the applicable time limit for contacting an EEO Counselor. We will
nevertheless consider the subject matters as background information for the accepted claims.

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Claims (2) and (4):

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, 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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant began working at the Agency as a Transitional
Employee (TE) on March 29, 2008, under a temporary one-year contract, which was renewed
annually from 2009 through 2013. In February 2013, the TE position was changed to a CCA
position (i.e., from a temporary term-limited appointment to a non-career position). CCAs were
typically appointed for one year at a time. As a CCA, Complainant assisted regular carriers by
serving as a substitute carrier for regular carriers who were not at work on any given day.

The postmaster indicated that on February 13, 2014, he notified Complainant that she was not
reappointed to her CCA position due to her poor work performance and her poor attitude toward
her supervisors. The postmaster also indicated that he informed Complainant of her performance
deficiencies on multiple occasions, i.e., particularly, on May 8, 2013, August 6 and 8, 2013,
January 9 and 24, 2014, and February 13, 2014. Complainant acknowledged that the postmaster
did tell her about her work performance as described in claim (1). Complainant also
acknowledged that she was slower on her delivery because she was accurately delivering the
mail and she was a petite size 46-year old woman who simply was “outgunned by any younger
person or taller stronger male from the get go that it is not right to expect [she] could do more
than physically capable of.”

Complainant’s supervisor (S1), concurring with the postmaster’s statements, indicated that on
January 30, 2014, Complainant became argumentative when she was requested but refused to
help out with delivery in the Lynnwood Post Office. Complainant does not dispute this.
Complainant’s other supervisor (S2) indicated that Complainant became confrontational and
verbally abusive on many instances, too many to list, when: she was questioned about her
estimated leaving or return times for her mail delivery; she was asked for an update on her
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delivery in the afternoon; she was asked to “clean and go”; and she was told to leave her Postal
satchels on Postal property. S2 further stated that Complainant was critical and often told her
supervisors how to do their job. In October 2013, indicated S2, Complainant shouted and
screamed at S2 in the parking lot and when S2 tried to give her a discussion in S2’s office, she
rejected S2’s instructions and told S2, that S2 did not know what S2 was doing and got up and
walked out. Complainant does not dispute the foregoing statements. S2 indicated that there
were ongoing discussions with Complainant regarding her performance and attitude over the
years of her employment at the facility.

After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency’s
legitimate, nondiscriminatory reason for the alleged incidents. After a review of the record, we
agree with the AJ’s finding that Complainant failed to show that there were any similarly
situated employees not in her protected groups who were treated differently under similar
circumstances. Regarding subsequent new matters raised on appeal, Complainant is advised to
contact an EEO Counselor if she wishes to further pursue the matters. Based on the foregoing,
we find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order 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

March 15, 2018
Date