Jacki A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 15, 20180120161509 (E.E.O.C. Mar. 15, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jacki A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120161509 Agency No. 1E-641-0026-15 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 29, 2016, finding no discrimination concerning 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 decision finding of no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a full-time Mail Handler (Equipment Operator), PS 5, at the Agency’s Kansas City Processing and Distribution Center, Kansas City, Kansas. On September 29, 2015, Complainant filed her complaint alleging discrimination in reprisal prior EEO activity when: on May 10, 2015, she was charged absent without leave (AWOL) for 1.5 hours; on May 10, 2015, she was issued a letter of warning (LOW); and on various dates and ongoing, her supervisor (S1) singled her out when he paged her to report to her work area.2 After completion of the investigation of the complaint, 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. 2 In her complaint, Complainant also alleged that S1 was witnessed performing Mail Handler craft duties. On November 3, 2015, the Agency dismissed that claim for failure to state a claim 0120161509 2 Complainant did not request a hearing. The Agency thus issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. S1 indicated that on May 9, 2015, S1 paged Complainant for work three times at five minute intervals at 5:15, 5:20, and 5:25 am but she did not return to her duties until 6:30am. Thus, stated S1, on May 10, 2015, Complainant was issued the LOW and therein, she was charged AWOL for 1.5 hours for leaving her assignment at 5:00 to 6:30 am. Specifically, S1 indicated that due to Complainant missing from her job assignment, there was a shortage of Power Equipment Operators to pull the mail which caused dispatches to be delayed. Complainant stated that during the time period at issue she was on break and did not leave the premises. Complainant stated that paging could not be heard in the cafeteria. Complainant indicated that the AWOL at issue was subsequently removed from her file and the LOW at issue was rescinded and was reduced to an official job discussion via a grievance. S1 further indicated that on May 9, 2015, Complainant and one of her coworkers (who had no prior EEO activity), also an Equipment Operator, were paged at the same time but both were missing from 5:00 to 6:30 am (1.5 hours). And, thus, stated S1, both were issued LOWs and were charged with AWOL. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Complainant has failed to show that similarly situated persons were treated differently. Regarding her claim of harassment in claim (3), we note that Complainant apparently does not contest S1’s reasons for paging her. We find that Complainant failed to establish the severity of the conduct in question or that it was related pursuant to 29 C.F.R. § 1614.107(a)(1). Since Complainant does not contest such on appeal, we do not address the Agency’s dismissal. 0120161509 3 to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED. 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). 0120161509 4 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 March 15, 2018 Date Copy with citationCopy as parenthetical citation