Cher C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 18, 20180120180228 (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 Cher C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120180228 Hearing No. 410201500338X Agency No. 4K300012615 DECISION On October 16, 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 September 18, 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. 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 was the Officer in Charge (OIC) at the Lilburn Post Office at the Ben Hill Post Office facility in Atlanta, Georgia. On April 20, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (African-American), sex (female), color (brown), and age (over 40) when: 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. 0120180228 2 1. On January 12, 2015, she received notification that the Agency intended to end her temporary detail as the Office in Charge (OIC) at the Lilburn Post Office and laterally reassign a male employee to serve permanently as the OIC; 2. On January 12, 2015, the Agency denied her request for permanent noncompetitive reassignment to the vacant Postmaster position at the Lilburn Post Office; and 3. On January 29, 2015, Complainant was told she would not be returning to the Ben Hill Post Office. On May 6, 2015, the Agency accepted claims (1) and (2) for investigation. The Agency dismissed claim (3), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In dismissing the claim, the Agency determined that Complainant had not yet suffered a present harm with respect to a term, condition, or privilege of employment or been subjected to any adverse action because the alleged incident was a preliminary step to a proposed action, which may or may not occur. 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, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the final decision, the decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged with respect to claim (1). The Agency did not address the merits of the claim (2) because Complainant previously withdrew her claim in her response to the Agency’s motion for summary judgment. The Agency also reaffirmed its dismissal of claim (3) pursuant to 29 C.F.R. § 1614.107(a)(1). 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”). On appeal, Complainant challenges the Agency’s proffered legitimate, nondiscriminatory basis for ending her temporary detail as the OIC at the Lilburn Post Office. She asserts that the Agency wrongly relied on the affidavit of the Manager of Post Office Operations (MPOO) without considering her statement. Though Complainant acknowledges that the MPOO cited her defiant and argumentative conduct as the basis for ending her detail, she asserts that the MPOO provided a different reason to her at the time of the incident. 0120180228 3 In this regard, Complainant alleges the MPOO advised her that the reason for terminating her detail was to give a male employee, who was having problems with a subordinate, the opportunity to transfer into Complainant’s position. She also alleges that while the MPOO cited her conduct as the basis for terminating the detail, her manager at the Ben Hill Post Office indicated she had voluntarily ended her detail. She asserts that this discrepancy undermines the Agency’s proffered legitimate, nondiscriminatory basis for ending her detail. Additionally, Complainant also challenges the Agency’s dismissal of her third claim. To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). The record reflects that the Agency provided legitimate, nondiscriminatory reasons for the termination of Complaint’s temporary detail as the OIC at the Lilburn Post Office. In the final decision, the Agency indicated that the MPOO terminated Complainant’s detail because she was not a good fit for the position and there were compliance issues. In so finding, the Agency cited to the MPOO affidavit, in which the MPOO described Complainant as defiant and argumentative. The MPOO also noted in her affidavit that Complainant missed in-person meetings, did not follow her lead, and was not on many telecoms. Complainant has failed to demonstrate that the Agency’s legitimate, nondiscriminatory reasons were pretext for discrimination. In an affidavit, Complainant indicated she believes the real reason for the MPOO’s decision to terminate the detail was due to her disagreement with the MPOO over the unprofessional manner in which the MPOO addressed her during a live telecom. We find that such statement is reflective of personal animus between Complainant and her supervisor. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Moreover, while Complainant alleges that the Agency treated two employees more favorably than her by allowing them to receive permanent noncompetitive lateral reassignment to vacant Postmaster positions at the Lilburn and Roswell Post Offices, the record reflects that the Agency reassigned these employees into temporary OIC positions (like Complainant). 0120180228 4 The record also shows that the Agency also advised the comparators that they, like Complainant, would need to compete to obtain permanent positions. Complainant was neither favored nor disfavored in the selection process. We acknowledge that Complainant’s supervisor at the Ben Hill Post Office may have erred in characterizing her departure from Lilburn as voluntary, but we find unpersuasive Complainant’s contention that such discrepancy is indicative of pretext. Complainant has not offered any evidence to suggest that management’s actions amounted to discrimination. For these reasons, we affirm the Agency’s finding of no discrimination with regard to claim (1). We also affirm the Agency’s dismissal of claim (3) for failure to state a claim under 29 C.F.R §1614.107(a)(1). There is no indication Complainant was harmed by any Agency action in claim (3). At most this was a proposed action which is also properly dismissed pursuant to 29 C.F.R §1614.107(a)(5). CONCLUSION We AFFIRM the Agency’s finding of no discrimination with regard to claim (1) and the dismissal of claim (3). 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. 0120180228 5 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 October 18, 2018 Date Copy with citationCopy as parenthetical citation