Louvenia S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 29, 20180120172833 (E.E.O.C. Nov. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Louvenia S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172833 Agency No. 4G-330-0068-17 DECISION On August 14, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 17, 2017 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. BACKGROUND During the period at issue, Complainant worked as a Rural Carrier Associate at the Agency’s Miami-Olympia Heights Branch in Miami, Florida.2 On December 11, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. 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 The record reflects that on December 11, 2016, Complainant resigned from her Rural Carrier Associate position. 0120172833 2 On January 25, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American) and color (black) when: 1. on November 12, 2016, she was issued a Letter of Warning;3 and 2. since on or about August 23, 2016, after her vehicle accident, her hours have been reduced. On March 4, 2017, Complainant requested that the instant formal complaint be amended, to include the following, third claim: 3. on December 11, 2016, Complainant was constructively discharged. On May 12, 2017, the Agency issued a document entitled “Acknowledgment and Dismissal of Amendment.” Therein, the Agency dismissed amended claim 3 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on March 4, 2017, when requesting amendment of claim 3. The Agency found that Complainant’s contact regarding claim 3 was more than forty- five days after the alleged discriminatory event occurred. After its investigation of claims 1 and 2, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), on April 27, 2017, finding no discrimination. The instant appeal followed. Complainant, on appeal, challenged the Agency’s May 12, 2017 partial dismissal of claim 3 for untimely EEO Counselor contact. ANALYSIS AND FINDINGS Disparate Treatment – Claim 2 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance 3 The record reflects that during the investigation, Complainant withdrew claim 1. Therefore, we will not address this claim any further in this decision. 0120172833 3 of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant asserted that since on or about August 23, 2016, after her vehicle accident, her hours were reduced. Complainant contended that her position as a Rural Carrier guaranteed a minimum of 25 hours per week and the number of hours for other routes chosen, if the primary or secondary carrier did not work. Complainant further stated that from August 22, 2016 to September 17, 2016, her hours were unjustly reduced following a vehicle accident. Complainant filed a grievance which was settled on October 5, 2016, regarding her being taken off the schedule and missing hours between August 30, 2016 and September 16, 2016, and she was compensated of 24.18 missed hours per week. The 204-B supervisor (Caucasian, white) stated that as a Rural Carrier Associate, Complainant does not have a guaranteed number of hours and that she is only guaranteed the primary route she was hired for on the days the regular carrier is off, and is also guaranteed her secondary route choices which are based on seniority. Further, the supervisor stated that anytime carriers are involved in an accident, the carriers are to take a driving test, and they cannot drive again until the driving test is completed. The supervisor stated that during the relevant period, Complainant’s hours were reduced because she was waiting for her supervisor at her station to provide her access to take the test. Complainant asserted that two carriers were allowed to work inside the office until they completed their drivers training unlike her situation, when she was not assigned office work and spent nearly one month without pay. The supervisor explained. However, that the two carriers referenced by Complainant are both regular carriers. Specifically, the supervisor stated that the two carriers are guaranteed their hours whereas Complainant is a Rural Carrier Associate and is only guaranteed to work her primary, second and third choices. Complainant also asserted that a Rural Carrier Associate/Service Regular Route (Carrier 3) had a vehicle accident and his hours were not reduced. The supervisor, however, stated that while Carrier 3’s enter on duty date was November 26, 2005, Complainant’s enter on duty date was 0120172833 4 November 30, 2015. The record reflects that Carrier 3 had over 10 years of seniority over Complainant, and the secondary routes are based on seniority which affect the number of hours Rural Carrier Associates work. We conclude that responsible Agency officials have articulated legitimate, non-discriminatory reasons for the scheduling of Complainant’s hours. She has failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask the true, discriminatory motives. Constructive Discharge: Claim 3 The Agency dismissed Complainant’s constructive discharge claim as untimely raised. The record shows that the alleged discriminatory event occurred on December 11, 2016 (the day Complainant resigned from Agency employment), but Complainant did not request that her pending EEO complaint be amended to include the constructive discharge claim until March 4, 2017, more than 45 days later. However, any time prior to the Agency's mailing of the notice required by 29 C.F.R. § 1614.108(f) at the conclusion of the investigation, 29 C.F.R. § 1614.106(d) permits a complainant to amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint. There is no requirement that the complainant seek counseling on these new claims. See Braxton v. U.S. Postal Service, EEOC Appeal No. 0120102410 (Oct. 29, 2010); EEOC’s Management Directive 110, Chap. 5, Section III(B) (August 5, 2015). Therefore, the Agency erred in dismissing the constructive discharge claim for untimely EEO counselor contact. Instead, it should have examined whether or not the proposed amendment was “like or related” to the pending claim concerning having her hours reduced. Cadag v. U.S. Postal Service, EEOC Request No. 0520120189 (May 10, 2013). On appeal, Complainant seems to argue that she felt compelled to resign because of ongoing harassment from management. While she mentions in passing the reduction in her hours, she does not seem to identify that as the primary motivation for her resignation. Therefore, it is not clear that the proposed amendment to her complaint (constructive discharge) was like or related to her pending claim concerning the reduction in her hours. However, even assuming it was, we conclude Complainant cannot prove a discriminatory constructive discharge because, as discussed above, she has not established that her hours were reduced for discriminatory reasons. To the extent that Complainant is claiming other harassing incidents motivated her decision to resign, she failed to include those incidents as part of her complaint and cannot raise them now for the first time on appeal. 0120172833 5 CONCLUSION We AFFIRM the Agency’s decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 0120172833 6 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 November 29, 2018 Date Copy with citationCopy as parenthetical citation