Coleen M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 13, 20180120161891 (E.E.O.C. Sep. 13, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Coleen M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120161891 Agency No. 4C400005415 DECISION On May 10, 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 April 6, 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. 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 Business Mail Technician, GS-7, at the Agency’s post office facility in London, Kentucky. On August 26, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when she was issued a Notice of 7 Day Suspension on June 5, 2015. The notice of suspension stated Complainant was charged with: (1) failure to follow official instructions; and (2) improper conduct. Through the grievance process, the Agency and Complainant agreed to reduce the suspension to a letter of warning regarding charge two and charge one was dismissed and expunged from her record. Charge two involved disputed events surrounding Complainant’s report to the Postmaster (PM) that two mail handlers were misusing equipment and caused damage to a courier truck. 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. 0120161891 2 PM claims his investigation showed there was no accident and Complainant’s false report created a hostile work environment between her and her coworkers. 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). In accordance with Complainant’s request, 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”). Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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 (1978). In a disparate treatment case, a prima facie case of discrimination based on sex many be done by Complainant's showing that she is in a protected class, and was treated less favorably than other, similarly situated employees outside her protected class. Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1875). For her claims of discriminatory discipline, appellant may establish a prima facie case by showing either that she is a member of a protected class who performed her job within the legitimate expectations of her employer and nevertheless was disciplined, or that she was singled out for discipline while similarly situated employees not in her protected groups were not disciplined or were disciplined less harshly. Campbell v. United States Postal Service, EEOC Appeal No. 01832804 (September 4, 1984) (prima facie case for disciplinary actions); See Mosley v. General Motors Corp., 497 F Supp. 583 589 (E.D. Mo. 1980). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. 0120161891 3 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 Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Here, Complainant asserts she was treated less favorably than three other male coworkers who committed similar violations but were not disciplined. This claim is refuted by the PM who claims he was unaware of similar violations but has issued 7 day suspensions to other coworkers. The Supervisor of Customer Services (SCS) was also involved in Complainant’s discipline for improper conduct. SCS also stated he had not issued corrective action for same or similar violations. He was also unaware of conduct issues for these three male coworkers that needed to be investigated. Moreover, SCS and PM both stated Complainant was disciplined for falsely reporting an accident which is not in the legitimate expectations of her job performance and grounds for discipline. Accordingly, there is no evidence that Complainant was treated less favorably than similarly situated employees not in her protected class and Complainant cannot establish a prima facie case. Assuming, arguendo, that Complainant established a prima facie case of sex discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its action. Specifically, the record shows that Complainant’s original suspension was for failing to properly scan sheets and for improper conduct for falsely reporting an accident. The charge of failing to scan sheets has since been dismissed and expunged from her record. The Commission finds the Agency articulated a legitimate, nondiscriminatory reason for Complainant’s suspension. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant failed to meet this burden. SCS investigated the accident Complainant reported and the investigation produced no evidence to establish an accident occurred. SCS inquired with Complainant about the accident she reported and she denied witnessing an accident. SCS was aware that Complainant and this male coworker, whom she reported was misusing equipment, had not been getting along. Based on his investigation and the lack of evidence to show an accident occurred, SCS found Complainant had falsely reported an accident to get her male coworker in trouble. Thereafter, SCS disciplined Complainant for improper conduct. The preponderance of the evidence does not demonstrate that the Agency’s legitimate, nondiscriminatory reason was pretextual. Accordingly, we find Complainant failed to establish that she was issued the notice of suspension based on her sex. 0120161891 4 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 0120161891 5 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 September 13, 2018 Date Copy with citationCopy as parenthetical citation