Anne R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Nov 14, 2019

2019001920 (E.E.O.C. Nov. 14, 2019)

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

Anne R.,1
Complainant,

v.

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

Appeal No. 2019001920

Hearing No. 430-2016-00520X

Agency No. 4K-280-0044-16

DECISION

On November 29, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 25, 2018 final action concerning an equal employment opportunity (EEO)
complaint claiming 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 Rural Carrier Associate (“RCA”) at the
Agency’s Hope Mills Post Office in Hope Mills, North Carolina.2

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.

2 The record reflects that Rural Carrier Associates serve as a relief on a regular rural route.

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On March 9, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race (American Indian), sex (female), and age
(born 1963) when:

1. on September 19, 2015, October 23, 2015, November 10, 2015, December 19, 2015,
January 15, 2016, and ongoing, she was provided additional Rural Carrier duties;

2. on November 16, 2015, she as issued a 7-day suspension for being Absent Without
Official Leave (“AWOL”) and Insubordination;3

3. on November 7, 2015, she became aware that management failed to pay her for all
hours worked on October 24, 2015; and

4. on April 30, 2016, her supervisor threatened to write her up for insubordination.4

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
a Decision Without a Hearing. On July 16, 2018, the AJ issued a decision by summary judgment
in favor of the Agency.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

3 As a result of Complainant’s grievance, the 7-day suspension was reduced to a 6-month
retention period.

4 Claims 3 – 4 were later amended to the instant formal complaint.
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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. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 Department of
Community 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).

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint.

Complainant has worked as a Rural Carrier Associate at the Agency’s Hope Mills Post Office in
Hope Mills, North Carolina.

Regarding claim 1, Complainant asserted that on September 19, 2015, October 23, 2015,
November 10, 2015, December 19, 2015, January 15, 2016, and ongoing, she was provided
additional Rural Carrier duties.

The AJ noted that the supervisor assigns pivots (part of another route) to RCAs based on several
factors which include experience, proximity and the employee’s past performance. According to
the supervisor (American Indian male, born 1987), whenever Complainant is given additional
work “she demands to know what everyone else is doing. I do not always provide her with that
information, because I do not discuss other carrier’s duties with another employee.”

Complainant asserted that a named RCA was provided additional duties but she was given more.
However, the supervisor stated “if assistance was needed on the street and it was efficient and
effective to assign to [male RCA], then it is assigned to said carrier.”

Complainant asserted further, that a named female RCA was treated better because the named
employee was not given additional duties if she says she does not feel good. The supervisor
explained, however, that at that time the female RCA was on a 90-day probation and was fairly
new on the job “however, carrier did perform auxiliary assistance on other routes including
casing on other routes. All carriers are treated similarly meaning that if assistance is needed on
the street and it is efficient and effective then it is assigned to said carrier.”
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The AJ noted that during the period of September 19, 2015 through January 22, 2016,
Complainant was assigned 26.22 hours of auxiliary assistance while the male RCA was assigned
12.10 hours of auxiliary assistance and the female RCA was assigned 39.97 hours of auxiliary
assistance.

Regarding claim 2, Complainant alleged that on November 16, 2015, she as issued a 7-day
suspension for being AWOL and for Insubordination.

The supervisor stated that on November 16, 2015, he issued Complainant a 7-day suspension for
AWOL/Improper Conduct when she failed to report to work on October 23, 2015 as scheduled,
and she failed to notify management of her absence. He stated that the next day, November 17,
2015, he asked Complainant about her failure to report to work, Complainant “became disruptive
and insubordinate on the workroom floor while using profanity directed towards me
(management).”

The record contains a copy of the Notice of Suspension dated November 12, 2015 in which the
supervisor placed Complainant on notice that she would be suspended for seven days for
AWOL/Improper Conduct. The supervisor determined that Complainant’s actions were
“inexcusable and unacceptable cannot and will not condoned or tolerated.” Furthermore, the
supervisor determined that Complainant was in violation of Sections 665.15 “Obedience to
Orders,” 665.16 “Behavior and Personal Habits,” and 665.24 “Violent and/or Threatening
Behavior” of the Employee and Labor Relations Manual.

Moreover, the supervisor stated that Complainant’s race, sex and age were not factors in his
decision to issue her the 7-day suspension.

Regarding claim 3, Complainant alleged that on November 7, 2015, she became aware that
management failed to pay her for all hours worked on October 24, 2015.

The AJ noted that after Complainant informed Agency management that it failed to pay her for
her hours worked on October 24, 2015, Complainant was compensated via a pay adjustment at a
later date. The AJ also stated that the October 24, 2015 was the day that Complainant was sent
home early after she used profanity and accused her supervisor of being a liar.

The Postmaster (African-American female, born 1965) maintained that Complainant’s pay was
adjusted after she informed management that she was not paid for all hours worked on October
24, 2015.

Regarding claim 4, Complainant asserted that on April 30, 2016, her supervisor threatened to
write her up for insubordination.

The supervisor stated that on April 30, 2016, Complainant returned to the office before 2:00 p.m.

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Upon her return, the supervisor asked Complainant to assist a new RCA on another route.
Complainant, however, told the supervisor “that she was tired of this bullshit and that she was
going to have me on the unemployment line. My response to [Complainant] was do you know
what insubordination is? She then responded do you know what an EEO is?” Specifically, the
supervisor explained that he did not threaten Complainant “but [informed] the employee that her
behavior was indeed insubordination.”

Complainant asserted that management’s threat to write her up was due to management not being
pleased with Complainant’s calculation of her time sheet. However, the supervisor stated “I
dispute this allegation. It is false. I instructed [Complainant] to assist [new RCA] and 15
minutes later she was still at her case staring at the time sheet. I then instructed her to assist
[new RCA] and stop loitering in the office.”

The undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination on any basis alleged.

Moreover, to the extent Complainant has also raised a claim of discriminatory harassment, she
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, race, sex or age. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself. Here, we have concurred with
the AJ’s determination that the undisputed evidence does not support a finding of discrimination
with regard to any of the incidents alleged. A case of discriminatory harassment is precluded
based on these 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

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.
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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

November 14, 2019
Date