Birdie C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 18, 20180120172862 (E.E.O.C. Oct. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Birdie C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120172862 Agency No. 4B040001017 DECISION On August 22, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 25, 2017, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible (PTF) Mail Processing Clerk, GS-6, at the Agency’s Warner Post Office facility in Warner, New Hampshire. On March 11, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (55) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967, when: 1. From October 23, 2016 through December 2016, Complainant was not provided the same work hour opportunities as her younger co-workers; and 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. 0120172862 2 2. Beginning December 7, 2016, Complainant was denied Annual Leave on four separate occasions. Claim 1 – Denied Work Hour Opportunities Complainant averred that the younger PTF Clerk was provided more opportunities for work hours than her from October 23, 2016 through December 2016. Complainant told her supervisor (S1) that she was interested in having more work hour opportunities. The Agency’s “AM/PM verification page” showed there was an overall difference in the work hours between Complainant and her younger co-worker. S1 further stated that the younger comparator offered her services to other offices on her day off, and Complainant did not. S1 averred that the additional hours for the younger coworker was the result of her working at multiple offices. The supervisor advised that she had tried to keep the hours in the Warner facility equitable. The record showed that Complainant actually received more hours than the comparator at the Monroe Post Office, as evidenced by the clock rings for her office. The younger comparator performed for different supervisors and worked during different time periods. Claim 2 – Denied Annual Leave S1 acknowledged that she denied Complainant’s requests. S1 averred that she only had two PTF Clerks, Complainant and the comparator. S1 stated that she needed one Clerk to cover at any given time. She stated that it was “very hard to borrow someone on a Saturday especially when all full-time employees were off and everyone in the area was short-staffed.” Complainant’s retaliation claim is based on the current underlying complaint. She had no prior EEO activity. In her affidavit testimony, in response to the EEO Investigator’s question regarding why Complainant believed her EEO activity was a factor when her requests for leave were denied, Complainant responded “N/A”. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency Decision The Agency found that Complainant’s allegations were not supported by the totality of the record and failed to present any plausible evidence that would have demonstrated that management’s reasons for its action were factually baseless or not its actual motivation. The Agency reasoned that the Complainant actually received more work hours than the alleged comparator employee at the Monroe Post Office. The Agency stated that “in age cases, the complainant must prove by a preponderance of the evidence that age was considered and that it was the determining factor.” (Emphasis in the decision). 0120172862 3 The Agency concluded that Complainant fid not meet her burden of establishing a prima facie case of unlawful discrimination. This appeal followed. CONTENTIONS ON APPEAL Neither party submitted a brief in this appeal. ANALYSIS AND FINDINGS 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, at Chapter 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”). Age Discrimination and Retaliation Section 633(a) of the ADEA requires federal agencies to make all of their personnel actions free of age discrimination. See 29 U.S.C. 633(a) (all personnel actions in federal employment “shall be made free from any discrimination based on age.” In addition, EEOC’s federal sector laws ban retaliation. The Commission has determined that based on its plain meaning, “free from any” must be construed as being broader than the “because of” language applicable in the private- sector. See Geraldine G. v. United States Postal Service (Headquarters), EEOC Appeal 0720140039 (June 3, 2016) (citing Fuller v. Gates, Secretary of Defense, 2010 WL 774965 (E.D. Texas. March 1, 2010) (distinguishing the private sector “but-for” standard from the federal sector “make free” requirement). It is not necessary to prove that age was the sole determining factor in a federal sector case. A claim of disparate treatment is examined under the three-part 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 case 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 Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 0120172862 4 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Complainant stated that she believed that she was not provided the same work opportunities as her younger co-worker and was denied annual leave on four separate occasions as an act of retaliation. The record shows that Complainant logged in more hours in the Warner Office than the younger co-worker to whom she compared herself, although the younger co-worker did receive additional work hours at another office. There was no evidence that this arrangement was due to her protected bases. Even assuming that Complainant established the elements of her prima facie claims, the Agency articulated a legitimate, non-discriminatory reason for its actions. The record shows that the alleged responsible management official did not control the scheduling for that other office and the younger employee had been specifically requested by the other office. Complainant was denied annual leave for the stated reason that there was no coverage available. We find that Complainant did not offer evidence that these reasons were a pretext for unlawful discrimination. Based on our analysis under the appropriate statement of the applicable law, we find that Complainant did not establish, by a preponderance of the evidence, that she was the victim of unlawful discrimination or a hostile work environment. For these reasons, we find that the Agency’s Decision is supported by the record. CONCLUSION Accordingly, we AFFIRM the Agency’s finding for the reasons stated herein. 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 tends 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. 0120172862 5 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. 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. 0120172862 6 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 October 18, 2018____ Date Copy with citationCopy as parenthetical citation