Hermila B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 30, 20180120171959 (E.E.O.C. Nov. 30, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hermila B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120171959 Hearing No. 560-2016-00105X Agency No. 1E641002315 DECISION On May 12, 2017, 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 April 10, 2017, final decision (FAD) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Expeditor, PS-07, at the Agency’s Processing and Distribution Center facility in Kansas City, Missouri. On September 11, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when on April 18, 2015, Complainant’s supervisor (“S) (Caucasian, male) ordered her to clock out, and kept her off work for four additional days without pay. 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. 0120171959 2 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 but subsequently withdrew her request. Consequently, 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. Specifically, the Agency found that Complainant failed to establish a prima facie case because she failed to identify otherwise similarly situated comparators outside of her protected bases who were treated differently. The Agency further found that, assuming arguendo that Complainant established a prima facie case, the Agency articulated a legitimate, nondiscriminatory reason for its action, namely that Complainant was suspended for disciplinary reasons. The Agency further concluded that Complainant failed to establish that the Agency’s articulated reason was a pretext. The instant appeal followed. 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”). Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 0120171959 3 This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. The burden next shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its action. The April 17, 2015, Notice of Emergency Placement in Off-Duty Status, signed by S, stated that the reason for Complainant being placed off the clock was “ZERO TOLERANCE” without providing any additional explanation. During the investigation, S averred that Complainant and another postal employee (“CW) (Caucasian, male) “were told to clock out for zero tolerance and I was instructed by Labor Specialist _______ to leave them off the clock till the Postal Inspector ran there [sic] investigation and it was clear to bring them back.” Report of Investigation (ROI), Affidavit B. S further averred that the reason for the discipline was that “the [sic] both made verbal threats. This is policy.” Id. The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet this burden. Complainant admits that she and CW were engaged in a verbal altercation but maintains that it was CW who was the aggressor. Complainant maintains that she called CW “lazy” whereupon he approached her “in a threatening manner. He was nose to nose, toe to toe with me in my face and he made the statement ‘you don’t have to talk to me like I’m some little boy.’” Complainant maintains that she walked away and CW followed her, so she said to him that his walking up to her “was not cool. That’s the kind of action that can get you fucked up in the workplace.” ROI, Affidavit A. Complainant further averred that the suspension “was just a racist action taken against me by [S] and they are just trying to sweep this matter under the carpet.” When asked why she believed her race and sex were factors in the decision, she stated “[S] is known for being unfair to African American females in the work place. Years of this behavior has been documented. Why would a supervisor want to harm one of his most conscientious employees who he knows works hard for the [Agency]?” We note that the record shows that both CW and Complainant were suspended without pay for the incident, which does not support Complainant’s claim that she was treated differently because of her race and/or sex. Complainant maintains that S “never intended for [CW] to be put off the time clock” because after CW filed a report alleging that Complainant had threatened him, S told Complainant’s union representative that he would be suspending Complainant. When the union representative asked S whether he had heard Complainant’s side of the story, S said “no, I will get that later.” Complainant maintains that this constitutes evidence that S was biased against her. 0120171959 4 Complainant further maintains that when she went to punch out, S and CW were standing by the time clocks and Complainant said to S, “I am not punching out unless [CW] is punching out.” Whereupon, S said to CW, “yea, you have to go.” According to Complainant, CW said, “why do I have to go, why do I have to go? I haven’t done anything wrong!” but S consoled him and said, “it’s going to be okay…don’t worry about it.” Even assuming that Complainant’s version of events is exactly as described, she has not shown she was treated differently based on race or sex. While Complainant describes S as being biased in favor of CW and against her, and further maintains that S did not want to discipline CW, the fact remains that, despite any biased feelings S may have had, he in fact treated both Complainant and CW the same when he suspended both of them, and the issue in Complainant’s claim is that she was treated differently. Complainant identifies other comparators who were allegedly treated differently but we note that two of the comparators listed are supervisors, unlike Complainant. As such they are not similarly situated with her. Complainant also listed two other employees, but does not identify what positions they hold and provides nothing more than their first names and the fact that they were both white females. Furthermore, Complainant has not specified that these two engaged in a verbal altercation, as she did, but escaped being suspended for four days without pay. Instead, Complainant appears to be arguing that S spoke with these two before issuing unspecified discipline, whereas he did not speak to Complainant “before making me clock out.” Such allegations are insufficient to establish that Complainant was treated differently due to her race and/or sex when she received a four-day suspension. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the 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. 0120171959 5 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. 0120171959 6 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 November 30, 2018 Date Copy with citationCopy as parenthetical citation