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

Equal Employment Opportunity Commission

Sep 26, 2019

0120181613 (E.E.O.C. Sep. 26, 2019)

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

Laquita H.,1
Complainant,

v.

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

Appeal No. 0120181613

Agency No. 1G336010117

DECISION

On April 16, 2018, 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 19, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a PS-6 Postal Support
Employee (PSE) Mail Processing Clerk at the Agency’s Ybor City Processing & Distribution
Center in Tampa, Florida. Complainant’s chain of command included the Acting Supervisor
Distribution Operations (SDO) and the Acting Manager Distribution Operations (MDO).

On September 7, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of race (African-American) when on May 23, 2017,
Complainant was separated from her postal position for Unsatisfactory Attendance and Failure to
Remain Gainfully Employed. According to Complainant’s statement in the record, she and 14
other PSEs were hired on April 1, 2017.

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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Complainant stated that she clocked in on the evening of May 22, 2017, and the PSEs were briefed
about their work assignments for the night. She said that she and another coworker were sent to
339/341 Cell and began throwing the mail and emptying cages, uprights, and Bulk Mail Center
(BMC) to get the mail in line for dispatch as they did every night. Around 1 a.m., on May 23,
2017, SDO directed Complainant to stop emptying a BMC and to throw mail from an upright
before dispatching around 1:15 a.m. However, SDO stated that when she returned the upright was
untouched. Documents in the record indicate that SDO issued a Request for Disciplinary Action
form that sought separation of Complainant, as a probationary employee, on the ground that
Complainant had failed to follow instructions and had unsatisfactory performance and attendance.
The document was signed by the MDO and the SDO. Complainant asserted that she believed her
race was a factor in the disciplinary decision because the Agency terminated eight of the 14 new
PSE hires and they were either Black or Hispanic and because it was unfair that she would lose
her position because she did not empty one upright after all the other work she had completed.

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 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). 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 of race
discrimination. The Agency noted that although Complainant was a member of a protected group
and had been subjected to adverse action, she did not identify any comparators or other evidence
from which an inference of discrimination could be drawn. The record revealed that Complainant
proffered three comparators who she felt were better treated. Complainant alleged that a PSE, a
Black male, who was issued a notice of removal for failure to follow instructions, left his
workstation but was given his job back. She stated that two PSEs, Black women, were walked out
during their probationary periods, but they were brought back to work. The Agency found that
since all three were African-American employees, Complainant failed to establish that persons
outside her protected group were treated more favorably.

The Agency further noted that even if Complainant had established a prima facie case, her evidence
of pretext in the form of laudatory letters from coworkers and other supervisors did not refute the
justification for the discipline at issue – that Complainant had failed to unload the mail on the
upright as directed and that she had attendance issues. This 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
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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”).

Complainant asserts that her “badge” or job was taken by SDO without a manager’s consent, but
MDO stated that he concurred with SDO’s request to terminate Complainant because she failed to
follow instructions. To the extent that Complainant complains on appeal that her leave and
attendance could not be the reason for her discharge because SDO never mentioned her poor
attendance or leave issues when she met with SDO to discuss the disciplinary action, that the first
Request for Disciplinary Action was altered to add the attendance and leave issues, and
Complainant has produced a letter excusing some tardy days or failure to show when her day off
was changed without notice, we find this rebuttal insufficient to set aside the Agency’s
determination. Management’s principal reason for disciplining Complainant was because she
failed to unload the upright as directed. In her appeal statement, Complainant admits that she did
not unload the upright but instead chose to empty the BMC first, which SDO had asked her to
leave for later. In that Complainant’s statement confirms that she did not follow instructions, we
find no pretext in management’s rationale for its actions and consider Complainant’s leave and
attendance issues additional reasons for the discharge.

We also do not find that Complainant provided any evidence that race motivated her discharge.
On appeal, Complainant alleges that a White female was hired on April 5, 2016, fired on June 19,
rehired on September 18, and is currently still working at Ybor P&DC as a Mail Handler Assistant.
While Complainant did not provide the circumstances of these actions or who made them, we
consider this information unpersuasive because the White female is not similarly situated to
Complainant since they hold different positions. Further, we find that the three other alleged
comparators who were treated better cannot support Complainant’s claim because all three are
African-American and thus within Complainant’s protected group. Moreover, according to
documents in the record, at least one had different supervisors in the disciplinary chain and two
were not probationary employees making them not similarly situated to Complainant.

CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

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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).
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.
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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 26, 2019
Date