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

Equal Employment Opportunity Commission

Mar 22, 2018

0120161666 (E.E.O.C. Mar. 22, 2018)

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

,
Chau O.,1
Complainant,

v.

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

Appeal No. 0120161666

Hearing No. 440-2015-00033X

Agency No. 4J-604-0117-14

DECISION

On April 1, 2016, 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
February 29, 2016, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Customer Service, EAS-17, at the Maywood Post Office, located in Maywood, Illinois in the
Agency’s Central Illinois District.

In March 2013, Complainant applied for and obtained an ad hoc detail, not to exceed two years,
for the position of Labor Relations Specialist, EAS-19, in Chicago, Illinois. The ad hoc position

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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was located in the Chicago District while Complainant’s position in Maywood was located in the
Central Illinois District.

Prior to her detail, Person A was the Postmaster in Maywood and Complainant’s supervisor.
Complainant began her detail in the Chicago District on April 29, 2013.

After Complainant was working in the ad hoc detail position, Person B became the Postmaster in
Maywood. During this time, Person C was the Manager of Post Office Operations (MPOO) for
the Central Illinois District and Person B’s supervisor. Person C noticed a shortage of
supervisors in the area and in November 2013, asked Person B whether she would end
Complainant’s detail. Person B decided to allow Complainant to continue in her detail despite
the fact that the Maywood Office was short-staffed because two supervisors had recently started.
However, in March 2014, one supervisor returned to that person’s original assignment in a
different post and another supervisor accepted a lateral position at a different location. At this
time, the Maywood Post Office was short-staffed and supervisors were working long hours.
Person C advised Person B to cancel Complainant’s detail due to the shortage of supervisors. On
April 29, 2014, Person B informed Complainant her detail would end. Complainant’s detail
ended effective May 17, 2014.

Person B instructed Complainant to return back to her Form 50 position as a Supervisor at the
Maywood Post Office. Complainant refused to return to Maywood because she said she
experienced harassment there by a letter carrier a year prior2, and did not feel safe there. In
response to Complainant’s concerns, on May 19, 2014, Person B instructed Complainant to
report to the Westchester Office. Complainant refused to report to the Westchester, Illinois Post
Office as she said that the letter carrier had access to that office as it was a branch of the
Maywood Post Office. Thus, on May 28, 2014, Person B instructed Complainant to report to the
Bellwood Post Office on May 29, 2014, which was not an office indicated on Complainant’s PS
Form 50. The position at Bellwood was a Supervisor, Customer Service EAS-17 located in
Bellwood, Illinois.

On August 8, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), age (59), and in reprisal for
prior protected EEO activity when:

1. On May 17, 2014, her Ad Hoc detail was cancelled; and
2. Thereafter she was told to report to an office that was not her PS Form 50 Office.

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). Complainant requested a hearing. The AJ
issued an Acknowledgment and Scheduling Order setting forth deadlines for compliance with
pre-hearing submissions. Complainant failed to comply with the stated deadlines. Upon failure

2 Complainant did not file an EEO complaint relating to the incident involving the letter carrier.
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to show good cause for her noncompliance, the AJ dismissed the hearing request. The AJ
remanded the matter to the Agency, and 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.

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”).

At the outset, we note that on appeal, Complainant does not challenge the AJ’s decision to
dismiss her hearing request. We also note Complainant does not challenge the definition of the
issues in her complaint.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to Complainant to demonstrate by a preponderance of the evidence that the Agency's
reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S.
502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Management cancelled Complainant’s ad hoc detail due to staffing needs. Person C stated that at
that time the Postmaster and other supervisors were working six days per week and 10-12 hours
per day due to a lack of managers. The Agency stated that after two supervisors left in March
and April 2014, Person B, with the approval of Person C, decided to end Complainant’s detail.
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The Agency stated Complainant was placed into an office different from the one indicated on her
PS Form 50, due to both business needs and to accommodate Complainant’s concern for her
safety. The Agency stated in light of Complainant’s fears and the shortage of supervisors in
other locations in the Central Illinois District, Person B, with the approval of Person C, instructed
Complainant to report to Bellwood, a Central Illinois District post office that was in need of a
supervisor. Complainant failed to show by a preponderance of evidence that the Agency’s
actions were a pretext for discrimination.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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.
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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

March 22, 2018
Date