Dorathy M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

May 13, 2016

0120140394 (E.E.O.C. May. 13, 2016)

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

Dorathy M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 0120140394

Hearing No. 650-2012-00038X

Agency No. 4G-770-0219-11

DECISION

Complainant filed an appeal from the Agency’s final order dated October 15, 2013, finding no
discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, dated August 29, 2011, Complainant alleged discrimination based on race
(Black American), sex (female), and in reprisal for prior EEO activity when beginning May
18, 2011, and continuing, the Agency denied her overtime. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On September 30, 2013, the AJ issued a
decision without holding a hearing, finding no discrimination. The Agency’s final order
implemented the AJ’s decision. Complainant filed the instant appeal and filed no appeal brief.

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.

0120140394

2
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
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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was a
City Letter Carrier, Q-01, at the Agency’s Willow Place Station in Houston, Texas.
Complainant claimed that she was on the 12-hour overtime desired list from May 18, 2011,
through September, 2011, but was denied overtime on 26 occasions during that time period.

Management indicated that overtime was awarded based on mail volume. Management stated
that overtime was assigned by rotation if it was outside the carrier’s own route and it was
approved on each carrier’s own route, with assistance provided to ensure timely mail delivery.
The AJ indicated that based on the Agency’s overtime alert reports, Complainant was given an
opportunity to work all of her non-scheduled days during the period May 18, 2011, through
June 24, 2011; and she was provided overtime on every regularly scheduled day except one
incident. Specifically, the Agency indicated that during the period at issue, despite her claim,
Complainant received 179.14 hours of overtime which was more than two other City Letter
Carriers received, i.e., one received 154.03 hours and the other received 164.36 hours.
Although Complainant claimed that one other employee also received more overtime, that
employee received 183.79 hours of overtime (approximately 4 more hours) and he was not a
City Letter Carrier; rather he was a Carrier Technician. Thus, the AJ indicated that
Complainant failed to identify a similarly situated employee not in her protected groups who
was treated more favorably under similar circumstances.

Upon review, we find that Complainant presented no evidence that the Agency’s articulated
legitimate, nondiscriminatory reasons for the alleged incident were pretexual. Based on the

0120140394

3
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order 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.

0120140394

4
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

May 13, 2016
Date