Lin A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 23, 20180120172521 (E.E.O.C. Oct. 23, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lin A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120172521 Hearing No. 530-2016-00040X Agency No. 4C15003815 DECISION On July 14, 2017, 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 final order2 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 Supervisor, Customer Serve, EAS-17, at the Agency’s East Liberty Post Office in Pittsburgh, Pennsylvania. On June 1, 2015 (and amended on July 11, 2015), Complainant filed an EEO complaint alleging that the 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 While we note that Complainant's appeal was originally premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final order on August 3. 2017. 0120172521 2 Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American) and sex (female) when: 1. on or about October 17, 2014; November 12, 2014; December 11, 2014; March 26, 2015; and, June 10, 2015, Complainant's Postmaster denied Complainant higher- level detail opportunities; 2. on or about January 15, 2015, Complainant's Postmaster threatened her by saying “she better not tell the Office of Inspector General (OIG) on him as Complainant knew what will happen to her;” 3. on March 5, 6, 7, 9, 11, 12 and 13, 2015, management changed Complainant’s clock rings; 4. on March 2, 2015, Complainant’s Postmaster accessed Complainant’s Performance Evaluation System (PES); and 5. on or about February 12, 2015, and on a date in April 2015, Complainant was instructed to only work eight-hour days and could only work four hours on her lay- off day. At the conclusion of 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). Complainant timely requested a hearing. The AJ assigned to the case determined, in response to the Agency’s motion, that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on July 6, 2017. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. 0120172521 3 The Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. For the reasons set forth below, we find that this case presents no genuine issue of material fact requiring a hearing to be resolved. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). To establish a prima facie case of discrimination, Complainant must identify as comparators one or more similarly situated employees who were treated more favorably than she. Morrow v. U.S. Postal Serv., EEOC Request No. 05921036 (April 15, 1993); Davis v. Dep't. of Labor, EEOC Appeal No. 0120101468 (Jun. 24, 2010); see also Haywood v. U.S. Postal Serv., EEOC Appeal No. 0120092765 (Dec. 2, 2009). To meet this standard, all relevant aspects of the comparator employees' work situation must be identical or nearly identical to Complainant's, i.e., that the employees report to the same supervisor, perform the same job function, and work during the same periods. The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995). Claim #1 (Denial of Detail) The Agency explains that Complainant was not selected for various acting supervisor details because, in each case, the person selected for the position had more relevant experience than Complainant. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has adduced no evidence that her qualifications were “observably superior” to those of the detailees here in question. 0120172521 4 Claim #2 (Threatened by Postmaster) According to Complainant, the Postmaster threatened Complainant with unspecified consequences if she reported certain of his misdeeds to the OIG. The AJ found that Complainant had failed to establish a prima facie case of discrimination. The Commission agrees with the AJ that Complainant failed to show that other employees outside of her protected classes were treated more favorably. The record shows that the Postmaster made similar comments to other supervisors, including a Caucasian male, threatening them if they cooperated with the OIG. Additionally, the record reveals that the Postmaster’s threats were investigated by the OIG, and he was later subjected to criminal charges. Claim #3 (Clock Rings Changed) Complainant alleges that a manager made changes to her computerized time records without her knowledge or permission. The AJ correctly concluded that Complainant failed to establish a prima facie case for this claim because she failed to identify, with specificity, individual employees outside her protected classes who were treated more favorably. Complainant states that her inspection of time records for “random Caucasian and male supervisor[s]” revealed no alterations. This type of fragmentary, anecdotal evidence is insufficient to support an interference of discrimination. Claim #4 (Performance Evaluation System “Accessed” by Postmaster) The AJ correctly concluded that Complainant failed to establish a prima facie case for this claim because she failed to identify, with specificity, individual employees outside her protected classes who were treated more favorably. The generalized allegation that the Postmaster did not access the performance evaluation systems of any “Caucasian or male” supervisors is insufficient to support an inference of discrimination. Claim #5 (Work Hours Restricted) The AJ properly found that Complainant failed to establish a prima facie case for this claim because she failed to identify, with specificity, comparable individual employees outside her protected classes who were treated more favorably than she was. The individuals she identified were not comparable to Complainant because they occupied different positions or worked at different facilities than Complainant. In order to support an inference of discrimination, all relevant aspects of the comparative employees' work situation must be identical or nearly identical to complainant’s, i.e., that the employees report to the same supervisor, perform the same job function, and work during the same time periods. See Cantu v. Dep’t of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006) citing Anderson v. Dep’t of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). 0120172521 5 Finally, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus on any of the alleged bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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. 0120172521 6 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 October 23, 2018 Date Copy with citationCopy as parenthetical citation