0120170643
07-27-2018
Gabriele G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gabriele G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170643
Agency No. 4G700005516
DECISION
On December 5, 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 November 7, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that the Agency discriminated against her based on her age (over 40) when she was issued a notice of separation for unsatisfactory performance and terminated from her position as a PSE City Carrier Assistant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a PSE City Carrier Assistant at the Agency's Shreveport-Lynbrook Station facility in Shreveport, Louisiana. On May 31, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (over 40) when she was terminated from her position. Complainant alleges that the Manager, Customer Service (E-1) and the Supervisor, Customer Service (E-2) intentionally discriminated against her because of her age when on March 18, 2016, she was issued a notice of separation for unsatisfactory performance and terminated. Complainant's immediate supervisor was E-3.
The notice was signed by E-2 on March 17, 2016, and sent to Complainant via certified mail. According to the notice, Complainant's performance was unsatisfactory, and she failed to reach her employment expectations. The Agency explained in the notice that Complainant had been informed upon completing her application for employment, during the interview, the orientation, and again when she reported to the Shreveport Lynbrook Station that the position of City Carrier Assistant required that she service routes and that she must satisfactorily perform all carrier duties as assigned. The notice further stated that Complainant's performance was unsatisfactory and that she had failed to achieve employment expectations. According to the Agency, Complainant, who was still in her probationary period, had not worked 90 actual days or been employed for 120 days.
The specific decision to terminate Complainant was based on an incident that took place on March 3, 2016. Complainant returned to the facility at approximately 6:40 pm. She had been due back by 5:30 p.m. According to Complainant, because she was in a hurry, she asked E-2 to put up her "endorsement and outgoing mail pieces that she had not delivered." E-2 denied that Complainant asked her to do so. She stated that there was no mention of the undelivered mail. The following day, March 4, 2016, Complainant's undelivered mail was found in the bottom of supposedly empty trays.
Complainant asserts that on March 3, 2016, another City Carrier (C-1) called her and told her to bring back all her mail. She stated that C-1 instructed her to return by 6:30 p.m., and asked if she had delivered all her parcels. Complainant stated that she had delivered all her parcels and that she was on the second half of the route but that there were 3 or 4 addresses that she could not see because it was dark and there were roaming dogs. Complainant stated that C-1 informed her that everything would be just fine and to return to the office because time was passing. She claimed that C-1 stated that the mail would just be re-cased back into the route, and that he would let E-3 know that they had spoken.
Complainant stated that after arriving at the station on March 3, 2016 at 6:40 p.m., E-3 assured her three times that she (E-3) would be responsible for disbursement of all mail. Complainant stated that she also told E-3 that she had a flat tire on her personal vehicle. She stated that E-3 instructed her to put the mail in the parcel select cart by the certified station cart. When Complainant was later asked about the mail that was found, Complainant stated that someone had moved the mail, and that it has yet to be discovered who moved it. She also stated that management violated many policies in that they refused to give her the necessary forms to do her job, were rude and disrespectful, and did not inform her that she needed light head gear.
Complainant further stated that she was told that E-2 had wanted her terminated earlier, on February 18, 2016, and that she overheard E-2 tell a coworker that "[Complainant] would not be there long."
When questioned by the Agency as to why she believed her age was a factor when she was terminated, Complainant alluded to the treatment of other employees. She claimed C-2 told her that she was returning mail because she could not see some of the addresses and she, Complainant, had to go help C-2 deliver a route during the month of March. Further, she indicated that C-3 approached her truck to give her some flats that were accidentally given to him but that he was taking them back to the station because Complainant had already finished that portion of her route. She noted that C-1 later called her about the flats and told her not to worry about them since they were assigned to him and he was supposed to put them out.
The record evidence included an Investigative Interview dated March 5, 2016, regarding Complainant returning deliverable mail to the station. According to the Interview, Complainant's response as to why mail was left in the bottom of trays was that someone was plotting against her and was out to get her. According to E-3, Complainant had been told repeatedly about the efficient delivery of the mail, including training on February 19, 2016 February 22, 2016, as well as multiple times by her delivery supervisors.
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. 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.
CONTENTIONS ON APPEAL
Complainant submitted a written rebuttal to the Agency's FAD. Primarily, the additional information she submitted addresses her belief that she was not treated fairly.
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").
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corn. 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; Fumco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).
Assuming, arguendo, Complainant has set forth a prima facia case of age discrimination, we find that the Agency articulated a legitimate, non-discriminatory reason for its action. Complainant was terminated from her position because she was not satisfactory performing the duties of her position as evidenced by the March 3, 2016, incident with the undelivered mail.
The burden now shifts back to Complainant to prove by a preponderance of the evidence that the reason articulated by the Agency is a pretext for discrimination. We find that she has not provided a nexus between her separation and her age. She did not produce evidence that would demonstrate that her age played any role in this matter. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Finally, where a complainant is a probationary employee, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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. 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
___7/27/18_______________
Date
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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