January B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120142562 (E.E.O.C. Sep. 1, 2016)

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

January B.,1
Complainant,

v.

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

Appeal No. 0120142562

Agency No. 1C-371-0019-13

DECISION

On June 20, 2014, Complainant filed an appeal from the Agency’s May 16, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee (PSE) Mail Processing Clerk at the Agency’s Nashville Processing and Distribution
Center in Nashville, Tennessee.

Complainant filed an EEO complaint dated November 4, 2013, alleging that the Agency
discriminated against her on the bases of sex (female) and age (over 40) when:

1. Complainant was issued a Letter of Warning dated June 7, 2013, for Poor
Performance/Failure to Follow Instructions.

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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2. Complainant was issued a 7-Day Suspension dated June 21, 2013, for
Unsatisfactory Attendance Tardiness.
3. Complainant was charged Absent Without Leave (AWOL) on July 4, 2013.
4. Complainant was separated effective August 4, 2013, and was not reappointed.

On December 3, 2013, the Agency dismissed issues (1) and (2) pursuant to 29 C.F.R.
§1614.107(a)(2), for untimely EEO Counselor contact. The Agency accepted issues (3) and
(4) for further processing.

At the conclusion of the investigation on the accepted issues, 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).
When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its
final decision, the Agency incorporated the rationale set forth in its December 3, 2013 letter
for dismissing issues (1) and (2). With regard to issues (3) and (4), the decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant states the information on the final decision she was sent is wrong.
Complainant explains she was not separated because of being AWOL on July 4, 2013.

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”).

At the outset, we note that Complainant does not challenge the Agency’s dismissal of issues (1)
or (2) on appeal. The Commission has the discretion to review only those issues specifically
raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address the dismissal of issues
(1) and (2).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). 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
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inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. With regard to issue (3), Complainant stated in her affidavit that she was late to work
on July 4, 2013, by three hours but was never charged AWOL for that day. During an
Investigative Interview held on July 5, 2013, concerning the incident, Complainant explained
that in a previous Saturday meeting she understood management to say that July 4, 2013,
would be a normal work day for the PSEs. Complainant stated that she understood that to
mean she would report at the normal time. Complainant stated she glanced at the schedule and
saw no mark outs or changes in time so she came in when she thought she was scheduled.
Complainant stated that Person A, Acting Supervisor of Distribution Operations, instead of
listening to her explanation for being late on that day, became irate and sent her home.

Person A stated that Complainant did not report to work on July 4, 2013, at her start time and
did not call in regarding her failure to be on time. Person A noted the schedule is posted no
later than one week prior to the holiday, and it is the employee’s responsibility to check their
schedule. Person B, Supervisor Production Operations, stated that Complainant was initially
charged with AWOL for being late and not reporting as scheduled for work on July 4, 2013.
He noted an investigative interview was conducted to find out what happened, and
Complainant had no valid reason other than she did not look and read her schedule properly.
Person B noted that after giving Complainant an investigative interview, it was decided that the
charge of AWOL was not going to be acted upon and her explanation was accepted. The
record reveals a Request for or Notification of Absence PS-Form 3971 was approved for
Complainant defining her type of absence on July 4 as “other.”

With regard to issue (4), Person C, Supervisor Distribution Operations, stated that she gave
Complainant the letter stating that she would not be reappointed, and that she was not
reappointed because of her job performance and attendance issues. Person C noted that
Complainant had received training and instructions regarding the requirements of her job,
however, on May 7, 2013, she was assigned to AFCS #6 in the 010 operations, where she sent
mail out wrong, with both Knoxville & Chattanooga mail mixed together causing delay in
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reaching its correct destination. Person C stated Complainant received a Letter of Warning for
this.

Additionally, Person C stated that Complainant had an attendance issue; that she was talked to
several times about her attendance; and that she failed to maintain her assigned schedule.
Person C noted that Complainant was given every opportunity to improve on her attendance
but she made no effort to avoid unscheduled absences and maintain her assigned schedule.
Person B noted that on March 19, 2013, Complainant was given an official discussion
regarding her requirement to be regular in attendance and report on time. The record reveals
that on June 21, 2013, Complainant had received a 7-day Suspension from Person B because of
her unsatisfactory attendance, which included 14 tardies between May 6, 2013, and June 7,
2013.

In an attempt to prove pretext, Complainant claimed that her supervisors favored men.
Complainant stated she felt that her supervisors considered men and younger people stronger
than her. Complainant also claimed that male supervisors flirted with younger women.

Upon review we find Complainant failed to prove by a preponderance of evidence that she was
subjected to unlawful discrimination as alleged. Other than her unsupported allegations,
Complainant provided no evidence that the Agency’s articulated reasons were a pretext for
discrimination based on sex or age. Accordingly, the Agency’s final decision 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,
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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.
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

September 1, 2016
Date