0120150863
03-04-2016
Belia B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Belia B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120150863
Hearing No. 430-2013-00389X
Agency No. 4K-270-0020-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 18, 2014 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 City Carrier at the Agency's Hickory, North Carolina Post Office.
On March 27, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that since August 13, 2012, she was subjected to harassment and a hostile work environment on the bases of sex (female), disability, age (over 40), and in reprisal for prior EEO activity when:
1. on September 6, 2012, she was issued a Letter of Warning for Failure to Follow Instructions;
2. on September 14, 2012, she was issued a 7-Day Suspension for Failure to Follow Instructions/Unsatisfactory Work Performance;
3. on October 17, 2012, she was issued a 14-Day Suspension for Failure to Follow Instructions/Unsatisfactory Work Performance; and
4. on November 2, 2012, she was placed on Emergency Placement status without pay and subsequently issued a Notice of Removal dated November 9, 2012.
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 November 19, 2014, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Regarding claim 1, Complainant was issued a Letter of Warning for Failure to Follow Instructions. The AJ noted that on September 6, 2012, Complainant received a call that her dog was loose at her house and she left her route to secure her loose dog. After securing her dog, approximately one hour later, Complainant returned and finished carrying her route. However, Complainant was issued the Letter of Warning primarily because she did not contact management prior to leaving without authorization. The AJ noted that as a result of a grievance settlement, the September 6, 2012 Letter of Warning was reduced to an official discussion.
The Supervisor, Customer Service stated that she was the deciding official to issue Complainant the Letter of Warning because of her "deviation from the route without notifying USPS. [Her] [s]on called her and told her that her dog was in the road. She went to get the dog and take it home."
The Postmaster stated that he was the concurring official concerning Complainant's Letter of Warning. Specifically, the Postmaster stated that the Letter of Warning "was an attempt to correct performance issues and the US Postal policies were followed. The investigative interview was completed and revealed the action was necessary."
Regarding claim 2, Complainant was issued a 7-Day suspension for missing scans while delivering mail on her route after she had previously received discipline and training. The AJ noted that the 7-Day suspension was eventually reduced to a Letter of Warning.
The former 204-B City delivery supervisor stated that from September 2012 to January 2013, she supervised Complainant. The former supervisor stated that on September 14, 2012, Complainant was assigned to the collection route and "her responsibilities were to pick up all outgoing mail in the blue collection boxes placed throughout the city of Hickory as well as contract stations assigned to her route. Each box contained a barcode inside that she was to scan after the box was emptied. [Complainant] had already received an Official Discussion concerning missed scans on the route. In addition, a daily check off list was provided to her in the correct line of travel with the scheduled pick up times on them. Many attempts were made to help [Complainant] complete her job efficiently but she continued to miss scans."
Regarding claim 3, the former 204-B supervisor stated that Complainant was issued a 14-Day suspension for failure to scan and for failure to clock several cluster boxes after she serviced them. Specifically, the former 204-supervsor stated that on October 17, 2012, she placed a post-it note on Complainant's time card instructing her to come to her office and "I explained this to her that morning and told her to make sure she used the list that had been provided for her to assist her in staying on track. It was discovered later in the day that [Complainant] had not only missed one third of the scans, but also left two boxes unsecure." Moreover, the former 204-B supervisor stated that after investigating the incident she determined that Complainant was "willfully negligent" in completing her assigned task.
The Postmaster stated that he concurred with Complainant's 14-Day suspension because "her performance relative to collections were not being corrected as a result from prior discipline. She continued to fail to follow instructions. In addition, leaving a collection box open is an egregious violation that exposes mail entrusted to the USPS in danger of loss or theft."
Regarding claim 4, the AJ noted that Complainant was placed on emergency placement on November 2, 2012, and ultimately removed from Agency employment for allowing a non-postal employee to pick up mail on her route.
The AJ noted that the former 204-B supervisor received a telephone call "on the day of the event inquiring about someone picking up mail at the contract station. I informed [supervisor] that I had no knowledge of anyone other than the employee assigned to the collection route picking up at Ace. She then informed me that I would need to speak to staff upon returning to work the next day. I spoke with [male City Carrier] and received a statement from him as well as [female City Carrier]. [Male city carrier] stated that the employee at [contract station] told him that [Complainant's] brother had been picking up the mail that week. [Male City Carrier] went on to say that [female employee] told him that [Complainant] came in and told them that her brother would begin picking up the mail there. That schedule began on October 29, 2012."
The former 204-B supervisor stated that following an investigation, it was determined that it would be in the best interest of the Agency to place Complainant on emergency placement "pending further investigation. [Complainant] violated federal contract law by passing her assigned duties as a postal employee to an individual not employed by the US Postal Service." The former 204-B supervisor stated that subsequently on November 9, 2012, Complainant was issued a Notice of Removal because she "willfully violated federal contract law and oath to protect sanctity of mail. [Contract station] was able to provide us with video surveillance that showed [Complainant's] brother backing a truck up to [their] back door and placing mail in his truck and pulling away."
The Postmaster stated that following an investigation of the incident, it was evident that Complainant's brother (not an Agency employee) had been performing her duties "by collecting mail from one of her assigned collection points. This was done in violation of federal contract law. He had no authorization to handle the mail out there. [Complainant's] role is to collect and transport mail. To also protect it. The incident was reported to us by another carrier who noticed there wasn't very much mail when he arrived while he was assigned to her job on her day off. Statements from the manager and employee at the location, along with our ability to narrow the possible means by which her brother came to collect the mail to her as the source, we had to put her [off] duty to protect the mail."
Further, the Postmaster stated that he was the deciding official that Complainant be issued a Notice of Removal because the evidence point to her "as the responsible party for failure to protect the mail and/or being party to or making arrangements for federal contract law violation."
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if she had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final action.
The instant appeal followed. Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. Complainant argues that she "deserves her opportunity to show that the longstanding, unrelenting adversarial posture [Postmaster] has taken in his dealings with her has colored every act or actions he takes. It is rooted in and grows out of [Postmaster's] desire to punish, control, and work his will on complainant due to her documented EEO history. The Commission should be obliged to not let its rules and procedures and this EEO process become a tool in his arsenal."
ANALYSIS AND FINDINGS
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).2 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 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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has essentially failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. We also note that Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final action implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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 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
March 4, 2016
__________________
Date
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 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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