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

Equal Employment Opportunity Commission

Oct 5, 2016

0120142822 (E.E.O.C. Oct. 5, 2016)

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
(Great Lakes Area),
Agency.

Appeal No. 0120142822

Agency No. 4J-530-0023-14

DECISION

On August 1, 2014, Complainant filed an appeal from the Agency’s July 8, 2014, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier
Assistant at the Agency’s Teutonia Station in Milwaukee, Wisconsin. The record reveals
Complainant was hired as a City Carrier Assistant on July 13, 2013. Complainant was
terminated from her position effective September 26, 2013.

On January 24, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when:

1. On September 23, 2013, Complainant was given an investigative interview by the
Office of Inspector General (OIG) agents and was denied representation; 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.
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2. On September 26, 2013, she received a Letter of Termination effective September
26, 2013.

On March 12, 2014, the Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(1),
for failure to state a claim. Specifically, the Agency stated that matters concerning the OIG
are appropriately addressed within that forum itself, and not in the EEO process. The Agency
accepted claim (2) for further processing.

At the conclusion of the investigation on the accepted issue, 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). When Complainant
did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its final decision, the Agency noted that the Station Manager was contacted by the Hampton
Station Manager who reported that a postal customer had found discarded mail. The Agency
stated the mail was discovered on Complainant’s route and Complainant was the only carrier
who had worked on that route for the week in question. The Agency noted that OIG agents
had taken custody of the mail and had arranged to interview Complainant. The Station
Manager reported that during the investigative interview with the OIG agents, Complainant’s
union representative terminated the interview and would not allow Complainant to respond to
the Agency’s questions. The Station Manager stated she terminated Complainant for violating
the regulations prohibiting the destruction of mail. The Agency noted Complainant was
terminated before she had completed 90 days of work. The Agency stated management’s
action to terminate Complainant without considering progressive discipline complied with
Article 16, of the National Agreement. The Agency stated that since Complainant did not
refute the Station Manager’s testimony that she was the only carrier delivering mail on the
route during the period in question and did not present any other facts to overcome the
conclusion that she was responsible for throwing away the mail, the Station Manager was
justified in terminating Complainant for violating the regulations prohibiting the delay,
destruction or obstructing mail.

The Agency noted Complainant declared that the Station Manager terminated her based on race
and sex because Complainant alleged that when male employees committed misconduct they
were not terminated. Complainant stated she had no prior performance or conduct infractions
and claimed the Station Manager had no valid reason to terminate her. The Agency
determined Complainant failed to establish that the legitimate explanations given by the Agency
were pretext for discrimination.

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
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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 Complainant does not challenge the Agency's dismissal of claim
(1). The Commission has the discretion to review only those issues specifically raised in an
appeal. Accordingly, we will not address the dismissal of claim (1). Moreover, we note
Complainant does not challenge the Agency’s 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 back 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).

Upon review we find Complainant failed to prove by a preponderance of evidence that she was
subjected to unlawful discrimination when she was terminated. Specifically, we find the
Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated
the evidence compiled by the OIG and reflected in the Station Manager’s affidavit showed that
Complainant was responsible for the misconduct which led to her removal. The Agency noted
that the mail found in the trash bin was to be delivered on Complainant’s route, that she was
the only carrier working on the route that week, and there was no evidence that any other
carrier could have thrown the mail away. The record contains no evidence that Complainant
was being treated differently than any other City Carrier Associate. Upon review, we find
Complainant failed to show that the Agency’s articulated reasons were a pretext for
discrimination.

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CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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”
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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 5, 2016
Date