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

Equal Employment Opportunity Commission

Dec 11, 2018

0120172630 (E.E.O.C. Dec. 11, 2018)

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

Cecile S.,1
Complainant,

v.

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

Appeal No. 0120172630

Agency No. 1J-609-0022-14

DECISION

On July 28, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 23, 2017 final decision 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 Mail Handler at the Agency’s Network
Distribution Center in Forest Park, Illinois.

On July 22, 2014, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), sex (female), disability, and
age (over 40) when:

1. on July 3, 2014, she was issued a Letter of Warning;
2. on September 18 and 20, 2014, she was physically assaulted, and management did not
take appropriate action; 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.
0120172630

2

3. she was issued a Letter of Warning dated October 31, 2014 for “Unacceptable
Conduct as Evidence by You Failing to Follow and Failing to Perform Your Duties as
Assigned in a Conscientious Manner.”2

After the investigation of the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. The AJ, however, issued
an order dated May 16, 2017, dismissing Complainant’s hearing request, finding that
Complainant had not complied with the AJ’s orders. Consequently, the Agency issued the
instant final decision on June 23, 2017, pursuant to 29 C.F.R. § 1614.110(b).

In its final decision, the Agency dismissed claim 1 on the grounds of mootness, pursuant to 29
C.F.R. § 1614.107(a)(5). The Agency determined that the matter raised in the formal complaint
had been resolved in the union grievance process. Specifically, the Agency noted that because of
a union grievance, the July 3, 2014 Letter of Warning was reduced to a verbal warning. The
Agency then proceeded to address claims 1 – 3 on the merits, finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

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). 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.

2 The record reflects that claims 2 and 3 were later amended to the instant formal complaint.
0120172630

3
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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

In claim 1, Complainant asserted that on July 3, 2014, she was issued a Letter of Warning dated
July 2, 2014. Complainant claimed that the charge was false and that the “over bins” that she
was accused of not manning, were the subject of sabotage.

The Supervisor, Distribution Operations (female African-American, year of birth 1953, unknown
disability) was, during the relevant period, Complainant’s immediate supervisor. The supervisor
explained that on July 3, 2014, she issued Complainant a Letter of Warning for failure to follow
instructions and poor work performance. The record contains a copy of the supervisor’s written
statement dated August 29, 2014. Therein, the supervisor stated that Complainant “is a difficult
employee. She has a problem following instructions. She takes extended breaks. I’ve had
several job discussions with her concerning her breaks. I’ve had service talks with the whole
department and her in the importance of being back on time from their 15-minute breaks…the
accusations she’s accusing me of [are] untrue and without any merit.”

In claim 2, Complainant alleged that on September 18 and 20, 2014, she was physically
assaulted, and management did not take appropriate action. Specifically, Complainant claimed
that she was hit by the forklift which was operated by a named male employee (Employee 1).

The Manager, Distribution Operations (female African-American, year of birth 1946, unknown
disability) stated that Complainant was not physically assaulted by Employee 1. The Manager
stated that following an investigation, it was determined that Complainant “was not physically
assaulted. She was not hit by a forklift. If so, she would have had injuries, which may have
required her to be taken to a hospital for evaluation.”

In claim 3, Complainant asserted that she was issued a Letter of Warning dated October 31, 2014
for “Unacceptable Conduct as Evidence by You Failing to Follow and Failing to Perform Your
Duties as Assigned in a Conscientious Manner.” The supervisor explained that on October 24,
2014, Complainant was assigned to side 1 of the Automated Package Processing System (APPS)
machine. The supervisor stated that at one point, she observed a run-out backed up to the
carousel and instructed Complainant to pull the mail down. Instead, Complainant ignored her
instructions and walked away. The supervisor explained that another employee rushed to pull
the mail down to avoid shutting the sorter completely down which would have either caused a
delay in the mail flow or would have broken the carousel.

0120172630

4
Further, the supervisor stated that the next day, October 25, 2015, she observed Complainant put
the pause/sweep light button on several bins for no reason. Specifically, the supervisor explained
that the bins were not full and did not need to be pulled. She stated that she instructed
Complainant to turn the lights off because the mail was recirculating and causing a major delay
in the mail flow. Complainant ignored the supervisor’s instructions by not turning the lights off.
The supervisor stated that she approached Complainant a second time and instructed her to turn
off the lights so that the mail could get in the proper bins. The supervisor also stated that she
asked Complainant if she understood her instructions and Complainant then responded “you get
the lights out b****.”

The supervisor stated that on October 26, 2014, she conducted a Pre-Disciplinary Interview with
Complainant and her representative. The supervisor determined to issue her a Letter of Warning
“because of her unprofessional conduct and failure to perform assigned duties.”

Complainant also asserted that the supervisor “brushed” into her and said, “God bless you.” The
record, however, contains a copy of the supervisor’s written statement dated November 24, 2014.
Therein, the supervisor stated, “I would never put my job in jeopardy by physically attacking an
employee. I have [too] many invested years on the Post Service. When the employee
[Complainant] bumped into me, the force of the impact was so strong.

It was no accident. She knew exactly what she was doing. I turned around and looked at her in
the eyes and I replied, ‘God Bless You,” and I walked away. She started following me yelling,
‘you got put me off the clock.’ You [got] put me off the clock because I’m off the next 2 days.’ I
instructed her to report back to her assignment which she failed to do.”

Further, the supervisor stated that she instructed Complainant to report to her assignment for the
second time and asked her if she understood her instructions but she did not follow her
instructions.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.3

3 Because we affirm the Agency’s finding of no discrimination of claim 1 for the reasons stated
herein, we find it unnecessary to address alternative dismissal grounds (i.e. mootness).

0120172630

5
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. 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.
0120172630

6

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

December 11, 2018
Date