Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 16, 2015

01-2014-0920-0500 (E.E.O.C. Sep. 16, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120140920

Hearing No. 480-2012-00197X

Agency No. 1Y-520-0053-011

DECISION

On January 6, 2014, Complainant filed an appeal from the Agency’s December 7, 2013, final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a full-time
International Air Mail Records Unit Clerk, PS-07, at the Agency’s work facility in Los
Angeles.

On July 29, 2011, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her disability (asthma), age (64), and in reprisal for
her prior protected EEO activity under the ADEA and the Rehabilitation Act when on April
11, 2011, she was issued a Notice of Removal. 1

1 Complainant also initially claimed that she had been discriminated against on the basis of her
religion. Complainant subsequently withdrew the basis of religion. In addition, the Notice of
Removal was reduced to a seven-day suspension pursuant to the grievance process.

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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 timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on November 1, 2013.

The AJ found that Complainant was issued a Notice of Removal based on her failure to follow
her Supervisor’s instructions on three occasions and her failure to follow the accident reporting
procedures. The AJ noted that on January 6, 2011, Complainant was instructed by her
Supervisor to sort all manifests and to set up the Supervisor’s files. Complainant did not
comply with the instructions. On February 3, 2011, and March 17, 2011, Complainant was
again instructed by her Supervisor to sort manifests and to set up the 2011 files and on both
occasions she failed to comply.

The AJ stated that on March 7, 2011, the Supervisor cleaned her desk with Lemon Pledge and
swept the office area. The Supervisor asked Complainant if it was bothering her and
Complainant replied it was and she left the room for a period of time. The AJ observed that
Complainant did not report an injury or accident from workplace exposure to Lemon Pledge
and/or sweeping prior to leaving that day. The AJ noted that Complainant took unscheduled
leave on March 8 and 9, 2011, and returned to work on March 10, 2011, and again did not
report any alleged injury to management.

Complainant notified the Agency’s Injury Compensation Office of an injury on March 15,
2011, and her Supervisor and the Manager stated they were first informed of the injury on
March 18, 2011. The AJ stated that the Supervisor asserted that Complainant did not adhere
to the Agency’s Procedures and Precepts which allow management to timely investigate injury
claims and determine whether an actual hazard or danger was presented. According to the
Supervisor, Complainant’s statement on March 7, 2011, that the aerosol spray was bothering
her was not an adequate report of an injury or accident. The Manager stated that the Agency’s
policies require employees to report an accident or injury to their supervisor or manager the
same day that the accident or injury occurs.

The AJ noted that on March 11, 2011, Complainant filed a PS Form 1767 Report of Hazard,
Unsafe Condition or Practice with the Agency’s Safety Office concerning her Supervisor’s use
of Lemon Pledge and sweeping of the office. Complainant denied that her safety report was a
request for an accommodation of her asthma but rather stated it was a report of an assault with
an aerosol and dust. The Agency nevertheless responded by having the Manager instruct the
Supervisor on March 23, 2011, not to spray or clean her desk with employees in the office and
to contact maintenance for cleaning. On March 24, 2011, the Manager ordered that no one
would be allowed to spray a chemical that could cause harm to another employee.

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The AJ observed that during investigative interviews for her failure to follow her Supervisor’s
instructions and her failure to timely report her injury to her Supervisor, Complainant
responded to questions about the matters by stating that she was not prepared to answer at this
time. Complainant was subsequently issued the Notice of Removal. The Supervisor
recommended the Notice of Removal with the approval and concurrence of the Manager.

The AJ noted that Complainant stated in her affidavit that the incidents cited in the Notice of
Removal were lies created by her Supervisor so as to clear her path for the new Lead Clerk
position by securing her removal. The AJ, however, observed that Complainant nonetheless
admitted that she refused to follow her Supervisor’s instructions because the paper was dirty.
Complainant also acknowledged that she did not report an injury on March 7, 2011, to her
Supervisor and did not submit an OWCP form to her Supervisor. The AJ stated that
Complainant claimed that her Supervisor was motivated by retaliation toward her because she
is a senior clerk and the Supervisor is an Acting Supervisor. Complainant asserted that she
would be in direct competition with the Supervisor if a new lead clerk position was created.
Complainant maintained that the Supervisor had been subjecting her to constant badgering
since becoming the Acting Supervisor in October 2010.

Complainant claimed that three coworkers committed various infractions for which they
received no disciplinary action. One comparison was allegedly permitted to leave her
assignment in an “uproar condition” and come back after a year to resume her assignment.
Another comparison was allegedly allowed to talk on the phone for hours at a time. The
remaining comparison was allegedly permitted to be constantly out of the office and to use her
cell phone in the room for long periods of time. This comparison also allegedly was permitted
to bully other employees and utter offensive statements concerning race. The AJ noted that
Complainant did not claim that any of the comparisons were ever accused of a failure to follow
accident reporting procedures and/or failure to follow repeated supervisor instructions.

The AJ found that Complainant failed to set forth a prima facie case of discrimination under
each of the alleged bases. With regard to the claim of reprisal, the AJ stated that Complainant
entered into a settlement agreement of a prior EEO complaint on March 7, 2008, but there is
no temporal nexus between that EEO activity and the Notice of Removal issued over two years
later. As for the claim of disability discrimination, the AJ found that Complainant did not
present any evidence as to how her asthma impacts her performance of major life
activities/functions such as breathing. The AJ stated that with regard to both the disability and
age claims that Complainant failed to show that significantly younger or non-disabled
employees received less or no discipline from the Manager or her Supervisor for a failure to
follow accident reporting procedures and/or failure to follow repeated supervisor instructions.

Assuming arguendo that Complainant established a prima facie case under the alleged bases,
the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for issuing the
Notice of Removal. According to the AJ, the Agency stated that the Notice of Removal was
issued because Complainant failed to follow the accident reporting procedures specified in the
Procedures and Precepts document by not reporting her injury on March 7, 2011, or promptly
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thereafter to either her Supervisor or the Manager, and for her failure to follow her
Supervisor’s instructions on three occasions.

The AJ found that Complainant failed to establish that the Agency’s proffered reasons for its
actions were false or unworthy of credence. The AJ noted that Complainant admitted engaging
in the inactions for which she was disciplined. The AJ further observed that Complainant
attributed a number of non-discriminatory motivations, including professional
jealousy/competition and an intemperate response to non-EEO complaints, to her Supervisor
and the Manager.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ failed to consider statements in support of her
claim that reveal the Agency’s discriminatory intent. A retired coworker states that after word
had spread of a possible downsizing of the foreign records unit, the Supervisor and another
employee began to aggressively attack Complainant verbally and they started criticizing her
work product. This coworker maintains that she overheard a conversation between the
Supervisor and this employee where they discussed a plan to create events against
Complainant. According to the coworker, they wanted Complainant to either lose her job or
lose her position in the foreign records office because she was senior to them.

The coworker asserts that the Supervisor and the aforementioned employee on several
occasions had loud conversations when Complainant was absent where they said Complainant
was too old to still be working and that she might have dementia. The coworker states that
they accused Complainant of destroying her work files. According to the coworker, she spoke
with the Manager about the verbal abuse being inflicted on Complainant and then she was
subsequently the target of verbal attacks. Complainant submits a statement from another
coworker. This coworker states that the Supervisor purposely mistreated Complainant, falsely
accused her of sabotaging the work unit and made negative comments about her. The
coworker maintains that because Complainant was not liked by some employees in the unit,
she believes that a plan was set into motion to damage Complainant and her reputation.

In response, the Agency asserts that Complainant on appeal did not dispute any of the findings
or conclusions in the AJ’s decision, but rather requests a hearing.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
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is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case. For the reasons set
forth below, we conclude that this case does not present a genuine issue of material fact
requiring a hearing.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

The Agency stated that Complainant was issued a Notice of Removal based on her failure to
follow her Supervisor’s instructions on three occasions and her failure to timely report her
injury to her Supervisor or the Manager. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its issuance of the Notice of Removal.

Complainant contends that her Supervisor pursued a removal against her in order to ensure that
she would not be an obstacle to the Supervisor being selected for a possible Lead Clerk
opening. Complainant also claims that a potential downsizing of the office caused the
Supervisor and other unit members to disparage her because they were junior to her and their
jobs would be more vulnerable to a downsizing. On appeal, Complainant presents statements
from two coworkers in support of her position. We observe that although the retired coworker
maintains that the Supervisor and a coworker were intent on creating events that would cast
Complainant in a negative light, and that they disparaged Complainant based on her age, there
is no indication in the record that this coworker has previously raised these accusations. There
is no statement in the investigative record from this coworker and Complainant did not raise
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the assertions made by this coworker in her Opposition to the Agency’s Motion for Summary
Judgment.

We observe that on appeal another coworker submits a statement wherein she asserts that the
Supervisor purposely mistreated Complainant and falsely accused her of sabotaging the work
unit, and not respecting her in front of coworkers by uttering negative comments and
accusations concerning Complainant. This coworker provided two statements in the
investigative record. In those statements, the coworker provided information as to the March
7, 2011, incident concerning the Lemon Pledge aerosol spray, Complainant’s comments and
the Supervisor’s actions. The coworker also attests to Complainant’s professionalism and what
she has observed in terms of Complainant’s asthmatic condition. However, these statements in
the investigative record do not include the charges made against the Supervisor in the
submission on appeal. Complainant also did not reference such accusations by the coworker
against the Supervisor in her Opposition to the Agency’s Motion for Summary Judgment.

We note that the issue is whether, based on the record available to the AJ, there is a genuine
dispute of material fact. See Wilson v. Social Security Administration, EEOC Request No.
05980330(December 14, 2000)(summary judgment affirmed where complainant provided
evidence on appeal suggesting that certain duties were not an “essential function” under the
Rehabilitation Act and that she, therefore, was a qualified individual with a disability, but did
not present this evidence prior to the appeal, despite an opportunity to do so). We find that
Complainant has not refuted the Agency’s version of the events that serve as the basis for the
issuance of the Notice of Removal. Complainant has not shown that she was falsely accused of
failing to comply with her Supervisor’s instructions on three occasions. Complainant in fact
acknowledged that she refused to follow her Supervisor’s instructions regarding sorting the
manifests and setting up her Supervisor’s files because the paper was dirty. Complainant also
has not established that she brought the exacerbation of her asthmatic condition to the attention
of either her Supervisor or the Manager in a timely manner, thus violating the Agency’s
Procedures and Precepts. Based on the evidence in the record, we find that Complainant has
failed to establish that the Agency’s reasons for the Notice of Removal were pretext intended to
hide discriminatory intent.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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:

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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, P.O. Box 77960, Washington, DC 20013. 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”
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
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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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M
Carlton M. Hadden, Director
Office of Federal Operations

September 16, 2015
Date