Katina R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Mar 9, 2018

0120162825 (E.E.O.C. Mar. 9, 2018)

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

Katina R.,1
Complainant,

v.

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

Appeal No. 0120162825

Hearing No. 470-2015-0018X

Agency No. 4J-460-0030-15

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated August 4, 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 no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a City Carrier Assistant, CCA-1, Munster Post Office, Munster, Indiana. On April 15, 2015,
Complainant filed her complaint alleging discrimination based on sex (female) when on January
8, 2015, she was terminated during her probationary period effective January 17, 2015. After
completion of the investigation of the complaint, Complainant requested a hearing but later
withdrew the request. The Agency thus issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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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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"). Athletes

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 termination. The record indicates that Complainant was appointed to her
position as a City Carrier Assistant on November 17, 2014. Complainant’s supervisor (S1)
indicated that on January 8, 2015, she issued Complainant the termination letter at issue, with
which the Postmaster concurred, effective January 17, 2015, due to her unsatisfactory attendance
during her probationary period.

Specifically, S1 stated that: Complainant had been employed by the Agency for 45 days; she
was informed of her attendance issue in her 30-day evaluation on December 22, 2014; S1 also
had discussions with her about the same issue on a number of occasions; she was notified that
her reporting time to work was at 0800 daily unless she was informed for a different reporting
time; she was aware of the office policy of calling off via the Enterprise Resource Management
System (eRMS) when she could not report to work as scheduled; and on December 24, 2014, S1
called her to report to work at 1100 but she never showed up for work or informed S1 that she
could not make it to work.

The record indicates that Complainant received her evaluation on December 22, 2014. Therein,
Complainant received Unacceptable performance ratings for two factors, i.e., Work Quantity and
Dependability, which, in part, concerned her attendance and her reporting to work on time.

Complainant claimed that she was terminated because she reported her male coworker’s
harassment to S1 indicating that “he wasn’t being nice to her and saying that she needed to do
her job.” S1 indicated that when Complainant complained about that harassment, S1 discussed
the postal service’s zero tolerance harassment policy with both employees. S1 denied that the
termination was based on Complainant’s harassment claim.

The Agency indicated that Complainant’s time and attendance records showed that: she reported
late for work on December 6, 7, 20, and 22, 2014; she incurred five hours of unscheduled Leave
Without Pay on December 11, 2014; and she was out on unscheduled Absent Without Leave
from December 24 through 31, 2014. On appeal, Complainant states that her absences were due
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to her mom’s sister’s death and that she was late for work on December 6, 2015, due to traffic.
Complainant does not claim that she was ever denied requested leave.

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. Furthermore, Complainant also
alleged during the investigation that the termination was also based on retaliation for prior EEO
activity. We shall consider retaliation to be a basis in the complaint. After a review of the record,
we find that Complainant failed to show that there were any similarly situated employees not in
her protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant has failed to show that the Agency’s action was motivated
by discrimination or retaliation as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding 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.
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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

March 9, 2018
Date