Blanca B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120171595 (E.E.O.C. Nov. 20, 2018)

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

Blanca B.,1
Complainant,

v.

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

Appeal No. 0120171595

EEOC Hearing No. 560-2017-00167X

Agency No. 4J-630-0060-16

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 21,
2017 final decision concerning her equal employment opportunity (EEO) 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., 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

On January 23, 2016, Complainant was hired as a City Carrier Assistant 1 at the Agency’s
Maryville Gardens Station in St. Louis, Missouri, subjected to a 90-day probationary period.

On June 23, 2016, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her on the bases of sex (female), disability, and age (over 40)
when, on March 8, 2016, she was terminated from Agency employment.

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.
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After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and with a notice of the right to request a hearing (notice) before an
EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the
correspondence.

When the Agency did not receive a timely request for a hearing from Complainant, on February
21, 2017, the Agency issued the instant final decision, finding no discrimination.

The instant appeal followed. Complainant, on appeal, argues that the Agency improperly issued
a final agency decision because she timely submitted a request for a hearing before an EEOC
Administrative Judge. In response, the Agency asserts Complainant failed to notify it of her
hearing request.

ANALYSIS AND FINDINGS

Hearing Request

As a threshold matter, Complainant has asserted, and EEOC records confirm, that Complainant
sent a request for a hearing directly to the Hearings Unit of EEOC’s St. Louis District Office.
However, we note that the hearing request form Complainant signed and submitted on January
10, 2017, expressly states:

I understand that, if I have not provided the Postal Service with a copy of this
request for a hearing to the address listed above, the Postal Service will issue a
final decision on my complaint, resulting in the loss of my right to a hearing.

On February 21, 2017, the Agency issued a final agency decision without knowing that
Complainant had requested a hearing. To date, Complainant has not provided any documentation
that she sent a copy of her hearing request to the Agency.

On March 8, 2017, an EEOC AJ, not knowing the Agency had already issued a final decision,
issued an Acknowledgment Order, which marked the first time the Agency was notified of
Complainant’s hearing request (docketed as EEOC Hearing No. 560-2017-00167X). Thereafter,
the Agency moved to dismiss the hearing request, arguing since it had issued a final agency
decision on February 21, 2017, which Complainant already appealed, the AJ lacked jurisdiction
to issue a decision. Commission records show that the AJ granted the motion and dismissed the
hearing request.

After carefully considering Complainant’s argument on appeal regarding her hearing request, we
are unpersuaded that the AJ erred in dismissing it. See Lopez v. U.S. Postal Service, EEOC
Appeal No. 0120091185 (June 9, 2011) (affirming AJ dismissal of a hearing request were the
agency provided the complainant with notice that her right to a hearing would be forfeited if she
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did not provide a copy of the hearing request to the agency). Consequently, we will address the
merits of the Agency’s final decision.

Disparate Treatment Claim

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 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant asserted that on March 8, 2016, she was terminated from her employment as a City
Carrier Assistant 1 during her probationary period.

The record reflects that between January 29, 2016 and February 9, 2016, Complainant attended
classroom training. At the completion of her on-the-job training, Complainant certified that she
had been provided instructions in all applicable on her job tasks. The record further reflects that
the normal classroom training period is two days, but Complainant received six days of training.

The Manager, Customer Service (female, unknown disability) stated that she was the deciding
official to terminate Complainant during her probationary period for failure to perform her duties
in satisfactory manner.

2 Complainant identified her disability as obesity. We presume, for purposes of analysis only
and without so finding, that Complainant is an individual with a disability.

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The manager stated that Complainant was provided periodic evaluations during her probationary
period, but she “never could accomplish the task of delivering mail in the time warranted on the
auxiliary Rt. 1121 which is not a full route of 6 hours, it is only 1.5 hours of delivery.”

Further, the manager stated that during her evaluation, Complainant was “in denial about her
performance and made reference that she had lost weight, which was not relevant to the
evaluation.” The manager stated that during the relevant period she was not aware that
Complainant had a disability, noting she “never submitted medical documentation or restrictions
to anyone in management.”

Agency management articulated a legitimate, nondiscriminatory reason for its actions. Beyond
her bare assertions, Complainant produced inadequate evidence to establish that this explanation
was pretext designed to mask the true, discriminatory motives.

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination because the preponderance
of the evidence of record does not establish that discrimination occurred.

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.
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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. 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 20, 2018
Date