Dixie B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionAug 24, 20160120142634 (E.E.O.C. Aug. 24, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dixie B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142634 Hearing No. 451-2014-00098X Agency No. 4G-780-0133-13 DECISION Complainant filed an appeal from the Agency’s July 21, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it for de novo review. 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 Retail Clerk at the Post Office in San Marcos, Texas. On July 9, 2013, she filed an EEO complaint in which she alleged that her acting Customer Services Supervisor (CSS) and the Postmaster discriminated against her on the bases of national origin (Mexican), sex (female), color (Brown), age (44), and in reprisal for prior protected EEO activity by terminating her, effective May 10, 2013. The notice of removal, dated April 8, 2013, indicated that Complainant was charged with failure to follow instructions when she failed to enter “eCustoms” forms into the system processor known as the “POS-One” on March 20 and 25, 2013. Investigative Report (IR) 170-71, 185-87, 192-99. Complainant had been suspended for seven days in November 2012 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. 0120142634 2 for unacceptable conduct and again for fourteen days in February 2013 for insubordination. Both suspensions also included charges of failure to follow instructions. IR 153-54, 188-90. At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely 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 which it 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”). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would have to prove, by a preponderance of the evidence, that the Postmatster and the CSS were motivated by unlawful considerations of her gender, national origin, color, age, or previous EEO activity when they issued her the notice of removal dated April 8, 2013. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). She may do so by presenting evidence tending to show that the reasons articulated by the Postmaster and the CSS for terminating her were pretext, i.e., not the real reason but rather a cover for discrimination and reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). When asked by the investigator why she believed that her gender, Mexican national origin, age, brown skin color, and previous EEO activity were motivating factors in the CSS’s decision to fire her, and in the Postmaster’s concurrence with that decision, Complainant responded that the Postmaster favored the CSS because she was Anglo, and that the CSS was looking for any excuse to take action against her. IR 140-141. However, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by the CSS or the Postmaster, or which call their veracity into question. We therefore agree with the Agency that Complainant failed to satisfy her burden to prove the existence of an unlawful motivation on the part of the CSS or the Postmaster in connection with their decision to remove her in April of 2013. 0120142634 3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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 0120142634 4 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 August 24, 2016 Date Copy with citationCopy as parenthetical citation