Beatrice B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

2019003089 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatrice B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019003089 Hearing No. 450-2016-00200X Agency No. 1G-754-0086-15 DECISION On March 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 21, 2019 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. BACKGROUND During the period at issue, Complainant worked as a Mail Handler at the Agency’s North Texas, Processing and Distribution Center in Coppell, Texas. On November 12, 2015, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American) and sex (female) when: 1. on August 14, 2015, the District Manager tried to intimidate her and bumped into her, and she was placed off the clock; and 2. on September 11, 2015, she was issued a Notice of 14-Day Suspension. 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. 2019003089 2 After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing on December 4, 2018. Both Complainant and the Agency responded to the Notice of Intent. On January 29, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final action implementing the AJ’s decision. 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). 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. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 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). 2019003089 3 In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. The AJ noted that on August 14, 2015, Complainant stated that the District Manager approached her and asked to see her ID badge, who her supervisor was, where she worked, and if she was on or off the clock. Complainant answered each of the District Manager’s questions. However, according to Complainant, he became agitated and hostile when she told him that she did not know who her supervisor was. The District Manager asked Complainant for her badge again and continued questioning her. She claimed that she twice walked away from the District Manager during this exchange. In her formal complaint, Complainant recalled telling the District Manager that she “was not going to have this conversation at the workroom floor with several employees watching.” As she walked away from the District Manager, she briefly stopped. She stated she had not realized that the District Manager was following close behind her, and when she stopped, he bumped into her. The District Manager (Caucasian male) stated that on August 14, 2015, he left his office to walk to the Express Mail Unit. Approximately halfway there, he noticed Complainant walking in front of him going in the same direction as the Express Unit. After he got to the Express Mail Unit, he noted Complainant “continued to work ahead of me; she handed a bag to another employee and started walking back towards me. As she approached, I noticed that she didn’t have an ID badge, so I stopped her and introduced myself and asked her if she had a badge. She pulled it out of her left pocket and flashed it to me and put it back.” He stated that he asked what section she worked in and she responded that he should not be harassing her. The District Manager stated that when he asked Complainant where she worked, and she stated “Nixie.” He stated, however, when he asked her who her supervisor was, she claimed she did not have a supervisor. He then asked Complainant to see her badge again “so that I could record her name…that’s when she said again, I had ‘no right harassing her’ and then she began to walk away. I told her to follow me so we could find her Supervisor or MDO.”2 But Complainant refused to follow him, and instead she was going to look for her shop steward. Furthermore, the District Manager denied bumping into Complainant. With respect to the Notice of 14-Day Suspension, the AJ noted that Complainant was issued a Notice of 14-Day Suspension over the incident with the District Manager in which Agency management considered her to have become insubordinate and belligerent. The record contains copies of the Notice of Suspension and an amended Notice of Suspension both dated September 11, 2015, in which the Supervisor Distribution Operations (“supervisor”) issued to Complainant. Therein, the supervisor placed Complainant on notice that she would be suspended for 14 days for Unacceptable Conduct and Insubordination towards the District Manager on August 14, 2015. 2 MDO is an abbreviation for Manager, Distribution Operations. 2019003089 4 The supervisor further stated that on August 17, 2015, he conducted an investigative interview with Complainant and her union representative, and determined that her responses to the questions were unacceptable. He determined that Complainant was in violation of the following sections of the Employee and Labor Relations Manual: 665.1 “General Expectations,” 665.11 “Loyalty,” 665.15 “Obedience to Orders,” 665.16 “Behavior and Personal Habits,” and 277 “Identification Security.” Here, 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. We note Complainant provided no arguments on appeal contesting the AJ’s decision. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. 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. 2019003089 5 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. 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 January 17, 2020 Date