Carmelita S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120142795 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carmelita S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142795 Hearing No. 510-2013-00259X Agency No. 4G-335-0002-13 DECISION On August 5, 2014, Complainant filed an appeal from the Agency’s July 15, 2014 final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Rural Carrier at the Post Office in Bokeelia, Florida. On November 13, 2012, she filed an EEO complaint in which she alleged that her immediate supervisor, the Official-In-Charge at Bokeelia (OIC) retaliated against her for having previously filed a number of EEO complaints by placing her in emergency annual leave (EAL) status between September 26, 2012, and January 12, 2013, when she was removed. She amended her complaint on February 6, 2013, after receiving notice of her termination on December 3, 2012. 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. 0120142795 2 The OIC testified in her affidavit that she made the decision to place Complainant in EAL status after discovering indications that Complainant might have falsified information pertaining to her delivery route, which resulted in Complainant being overpaid. She further testified that she placed Complainant on EAL in order to ensure that Complainant did not interfere with the investigation. The OIC averred that she made the decision to terminate Complainant after the inquiries she had conducted revealed over 100 instances of false information pertaining to vacant addresses and that Complainant had failed to maintain her edit book, which in turn caused her route to be over-evaluated and Complainant to be paid more than she would have been paid had her route data been properly maintained. Investigative Report (IR) 70, 79-81, 91-93, 104-06, 134 161-90. When asked by the EEO investigator why she believed that her prior EEO activity was a factor in her being disciplined, Complainant replied that the OIC had initiated her actions within days of her receipt of the EEO packet pertaining to her previous complaints. IR 68. At the conclusion of the investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but over her objections the AJ assigned to the case granted the Agency’s September 3, 2013, motion for summary judgment and issued a decision on June 24, 2014, without holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on her reprisal claim in connection with being placed in emergency leave status and later terminated, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether the OIC was motivated by unlawful consideration of her previous EEO complaints when she undertook those two disciplinary actions at issue in the complaint now before us. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material fact by submitting sworn statements or documents tending to show that the OIC’s articulated reason for her action is pretextual. See St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Such evidence of pretext can include discriminatory statements or past personal treatment attributable to the OIC, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). 0120142795 3 Complainant’s entire claim appears to rest on the closeness in time between the initiation of her previous EEO complaints and the two disciplinary actions at issue in her complaint. We certainly agree that such temporal proximity is enough to establish a prima facie case of reprisal. To raise a genuine issue of material fact regarding the OIC’s motive, however, Complainant must, as we emphasized above, go a step further and present enough evidence to support an inference that the reason that the OIC gave for placing her in EAL and ultimately terminating her, namely that she falsified route information, was a pretext for retaliation. On this crucial issue, Complainant did not provide evidence of any of the indicators of retaliatory motive described above. She has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the OIC or which call the OIC’s veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to Complainant’s claim of reprisal in connection with her being placed on EAL and subsequently terminated. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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 0120142795 4 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 6, 2016 Date Copy with citationCopy as parenthetical citation