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

Equal Employment Opportunity Commission

Jul 20, 2018

0120161856 (E.E.O.C. Jul. 20, 2018)

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

Beryl B.,1
Complainant,

v.

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

Appeal No. 0120161856

Agency No. 4C-190-0098-15

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated April 15, 2016, finding no discrimination
concerning 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. For the following
reasons, we AFFIRM the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a City Carrier, Q-01, at its Conshohocken Carrier Annex in Conshohocken, Pennsylvania. The
record indicates that on September 14, 2015, Complainant contacted an EEO Counselor
regarding her complaint. On December 2, 2015, Complainant filed her complaint alleging
discrimination based on sex (female) when:

(1) On July 21, 2015, she was denied a transfer;
(2) On August 21, 2015, she was denied a transfer; and
(3) On September 4, 2015, she was denied a transfer.

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.
0120161856

2
On December 16, 2015, the Agency dismissed claim (1) due to untimely EEO Counselor contact
pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency indicated that the alleged
incident in claim (1) occurred on July 21, 2015, but Complainant did not contact an EEO
Counselor until September 14, 2015, which was beyond the 45-day time limit. The Agency
accepted claims (2) and (3) for investigation and after completion of the investigation,
Complainant requested a final Agency decision without a hearing before an EEOC
Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

ANALYSIS AND FINDINGS

Initially, upon review, we find that the Agency’s dismissal of claim (1) due to untimely EEO
Counselor contact was proper. In claim (1), Complainant alleged that she was denied her
transfer request to the Philadelphia Post Office on July 21, 2015. Complainant however did not
contact an EEO Counselor regarding the matter until September 14, 2015, which was beyond the
45-day time limit. On appeal, Complainant contends that she delayed contacting an EEO
Counselor regarding the matter because she was going through a grievance process to find out
the exact reasons for the denial. We note that the use of the negotiated grievance procedure or
Complainant’s waiting until she obtains more evidence which may or may not support the
alleged incident does not toll the time limits for contacting an EEO Counselor. She does not
indicate that she was unaware of the requisite time limit to contact an EEO Counselor at the time
of the alleged incident; nor does she provide any adequate justification to warrant an extension of
the applicable time limit for contacting an EEO Counselor. Thus, we find that the Agency
properly dismissed claim (1) due to untimely EEO Counselor contact. 29 C.F.R.
§ 1614.107(a)(1).

Turning to claims (2) and (3), 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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that Complainant, a City Carrier, who was
then assigned to Conshohocken Carrier Annex in Conshohocken, Pennsylvania, claimed that her
transfer requests to be assigned to the Philadelphia Post Office were denied. Complainant
indicated that her Conshohocken Carrier Annex Postmaster was responsible for the denial of her
August and September 2015 requests at issue.

0120161856

3
The Postmaster indicated that at the relevant time, Complainant requested the transfers at issue
via eReassign, a web based application for career bargaining unit employees, and he had no
involvement with the transfer requests. Specifically, the Postmaster stated that once an
employee requests a transfer via eReassign, the request would electronically be processed by its
Human Resources (HR) Office which would in turn provide employee information to the gaining
office via HR Checklist.

The record indicates that on August 2, 2015, the Philadelphia Post Office Complement
Coordinator received Complainant’s reassignment request, via eReassign, to its post office. The
Coordinator subsequently processed Complainant’s request based on her eligibility, safety and
attendance records, and supervisor evaluation. The record indicates that Complainant’s
supervisor provided an online evaluation about Complainant stating that, “Employee has had
corrective reduced and now is no longer live to include scanning. Carrier is also on the accident
repeater list having been involved in [two] incidents involving dogs in less than one year.”
Complainant’s supervisor also stated in the evaluation that Complainant’s safety record was not
satisfactory.

Based on the records provided by HR Office, the Philadelphia Post Office Coordinator
determined that Complainant’s work record was satisfactory but her safety and attendance
records were not satisfactory. Specifically, Complainant’s safety records cited two injuries, i.e.,
one incident of a dog bite and another incident involving dog incident (other than bite) on
September 26, 2014, and July 9, 2015, respectively. Complainant acknowledged these two dog
incidents. The record indicates that on August 21 and September 4, 2015, on behalf of the
Philadelphia Post Office Postmaster, the Coordinator notified Complainant that her transfer
requests were denied due to her unacceptable safety and attendance records. We note that
Complainant’s transfer request to the Philadelphia Post Office was subsequently granted on
November 2, 2015.2

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. After a review of the record, we find
that Complainant failed to show that there were any similarly situated employees not in her
protected groups who were treated differently under similar circumstances. 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 decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

2 On appeal, Complainant contends that she was not actually transferred to the Philadelphia Post
Office until February 20, 2016. This matter is not at issue in this appeal.
0120161856

4
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.

0120161856

5
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

July 20, 2018
Date