Kasi J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

2019003886 (E.E.O.C. Dec. 17, 2019)

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

Kasi J.,1
Complainant,

v.

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

Appeal No. 2019003886

Hearing No. 560-2017-00038X

Agency No. 1E-641-0017-16

DECISION

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 March 14, 2019, final
order 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the
Kansas City, Missouri Processing and Distribution. Complainant was hired into this position in
March 2015 as a “casual worker” for a term not to exceed 360 days. In a letter dated March 4,
2016, Complainant was notified that she would not be reappointed to another term “due to
conduct on workroom floor.”

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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On July 5, 2016, Complainant filed an EEO complaint in which she alleged that the Agency
discriminated against her on the basis of sex (female/pregnancy) when on March 4, 2016, she
was notified that she would not be reappointed as a Casual Mail Handler.

In an investigative statement, Complainant stated that she disagreed with her separation because
she had no conduct issues during her entire work history with the Agency. Complainant further
stated that a male Mail Handler (C1) who was not regular in attendance, went home early, and
was treated more favorably than she was treated under similar circumstances. Complainant
further stated that another male Mail Handler (C2) argued with his supervisor and was sent home
but received more favorable treatment than she received under similar circumstances.
Additionally, Complainant stated that a male Supervisor of Distribution Operations (C3) and a
Clerk (C4) were also treated more favorably than she was treated, although they were involved in
illegal hunting.

AJ’s Decision

After 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 AJ. Complainant requested a
hearing. On October 9, 2018, the Agency submitted a Motion for Summary Judgment, to which
Complainant responded in objection on November 23, 2018. In a decision dated February 28,
2019, the AJ assigned to the case granted the Agency’s October 9, 2018, summary judgment
motion and issued a decision without a hearing on February 28, 2019. In that decision, the AJ
concluded that Complainant did not prove that she was subjected to unlawful discrimination as
alleged. The Agency subsequently issued a final order fully adopting the AJ’s finding.

On appeal, Complainant contends that there are genuine issues of material fact that require a
hearing, including her contention that she was off the clock when the Operations Support
Specialist (OSS) encountered her on her cell phone, and her claim that other employees were not
separated from the Agency when they engaged in similar behavior. The Agency requests we
affirm its final order.

ANALYSIS AND FINDINGS

Summary Judgment

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249.
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At the summary judgment stage, the judge must believe the non-moving party’s evidence and
must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of
fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
failed to show that such a dispute exists, and the AJ correctly determined that there are no
genuine issues of material fact or credibility that merited a hearing. Therefore, we find that the
AJ’s issuance of a decision without a hearing was appropriate.

Disparate Treatment

In order to prove disparate treatment, Complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).

In this case, for purposes of analysis, we assume arguendo that Complainant established a prima
facie case of disparate treatment. Nevertheless, we find that the Agency provided legitimate,
nondiscriminatory reasons for its actions. Specifically, OSS stated that she decided not to
reappoint Complainant because Complainant talked on the phone through a Bluetooth device
while OSS was on the workroom floor. OSS stated that when a supervisor asked Complainant
what time she would leave that day, Complainant replied she would leave at 4:00 and started to
walk away while continuing her telephone call. OSS stated that Complainant’s actions violated
Agency policy regarding employee telephone use. OSS further stated that she did not know
about Complainant’s unscheduled absences until she separated Complainant from the Agency,
and at that time, she added this issue to Complainant’s “separating paperwork.”

Complainant compares herself to four employees who were not separated by the Agency.
However, C1 was the only comparative employee who had the same supervisor as Complainant.
Moreover, C1 only had two unscheduled absences during the period, whereas Complainant had
approximately 50 such absences.
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Similarly, C2 only amassed three days of unscheduled absences in 2015 and 2016. Further, C3
is a supervisor, while Complainant was not. C4 is a regular Clerk, whereas Complainant was a
casual Mail Handler with a term appointment. We also note that C3’s and C4’s terminations
were pending at the time of the investigation. Therefore, we do not find that C1, C2, C3, and C4
were treated more favorably than Complainant under similar circumstances.

In an attempt to prove pretext, Complainant contends that she was off the clock when OSS
encountered her on her cell phone. However, Agency policy provided that “[p]ersonal cellular
phones are not to be used on the workroom floor,” regardless of whether the employee was on
the clock or not. Report of Investigation (ROI), p. 155.

Additionally, Complainant notes that the Agency’s Motion for Summary Judgment focuses on
the claim she amassed an unacceptable amount of unscheduled absences, but OSS did not cite
this as the main reason for not reappointing Complainant. We agree, and as noted above, OSS
stated that she was unaware of Complainant’s unscheduled absences until she separated
Complainant from the Agency.

Nevertheless, even if the unscheduled absences were a secondary consideration in not
reappointing Complainant, in a note dated March 30, 2015, Complainant’s physician notified the
Agency that she was pregnant and had a due date of October 14, 2015. In a note dated October
3, 2015, Complainant’s physician informed the Agency that Complainant delivered a child on
September 30, 2015 and would return to work after six to eight weeks of maternity leave.
Complainant returned to work from maternity leave on or about December 5, 2015. The record
reveals that Complainant had 51 unscheduled absences from March 29, 2015 to March 1, 2016,
which did not include maternity leave.

We note that there is no evidence that the Agency was aware that any of Complainant’s
unscheduled absences were related to her pregnancy. In fact, two brief doctor’s notes are the
only medical documentation in the record, and they only apprised the Agency that Complainant
was pregnant, her due date was October 14, 2015, she delivered a child on September 20, 2015,
and would be on maternity leave for six to eight weeks. The Agency’s awareness that
Complainant was pregnant does not mean that all of Complainant’s unscheduled absences
beyond maternity leave were necessarily related to her pregnancy, and there is no evidence that
Complainant provided the Agency with notice of such a link during the relevant period.2 Finally,
the record indicates that Complainant indicated that her absences were largely attributable to
childcare. As such, we do not find that considering Complainant’s unscheduled absence was
tantamount to pregnancy discrimination here.

2 Likewise, there is no evidence Complainant requested leave as a reasonable accommodation for
a disability.
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We conclude that Complainant did not provide any evidence from which a reasonable factfinder
could conclude that the Agency’s nondiscriminatory explanations are pretext for unlawful
discrimination. Therefore, we find that the AJ properly issued summary judgment in favor of the
Agency.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order finding no discrimination.

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).

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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

December 17, 2019
Date