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

Equal Employment Opportunity Commission

Aug 29, 2019

0120181769 (E.E.O.C. Aug. 29, 2019)

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

Madeleine C.,1
Complainant,

v.

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

Appeal No. 0120181769
Hearing No. 490-2015-00104X
Agency No. 1C371006514

DECISION

On April 30, 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 29, 2018, 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.

ISSUES PRESENTED

Whether the EEOC Administrative Judge properly issued a decision without a hearing finding that
Complainant failed to establish that she was subjected to discriminatory harassment based on sex
(female) and reprisal for prior EEO activity) when:

1. on March 29, 30, 31, 2014, she was charged with being Absent Without Leave (AWOL);
2. on May 5, 2014, she was denied annual leave;
3. on May 7, 2014, she was denied annual leave;
4. on May 8, 2014, she became aware that she was missing time for a week to be specified;
5. on May 8 and 31, 2014, she was denied a lunch break;
6. on May 22, 2014, her scheduled day off, Friday, was changed to Wednesday;

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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7. on May 27, 2014, her supervisor called her a “hoe”;
8. on June 5, 2014, she was made to “clock out” early;
9. on June 7. 2014, she was not paid higher level pay;
10. on June 12, 2014, she was walked out of the building;
11. on July 6, 2014, she was denied a 5-day break;
12. on July 6, 2014, she was given a bad yearly evaluation; and
13. on July 28, 2014, she was not properly paid.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee, Mail Processing Clerk, (PSE)2 at the Agency’s Memphis Processing & Distribution
Center in Memphis, Tennessee. On October 1, 2014, Complainant filed an EEO complaint
alleging that the Agency discriminated against her as articulated above. 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. Over Complainant’s
objections, the AJ assigned to the case granted the Agency’s July 20, 2015, motion for a decision
without a hearing and issued a decision without a hearing on March 27, 2018. 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.

The instant appeal followed.
CONTENTIONS ON APPEAL

On appeal, through counsel, Complainant argues that the AJ improperly issued a decision without
a hearing because the record contains multiple instances of conflicts of material facts which could
only be resolved during a hearing. Additionally, Complainant contends that the AJ erred when he
analyzed each allegation as a separate claim instead of as an ongoing series of disparate and
retaliatory actions.

The Agency did not file a response to Complainant’s appeal.

STANDARD OF REVIEW

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

2 PSEs are temporary Postal Service employees hired for a term not to exceed 360 calendar days
per appointment. These employees are hired based on the operational needs of the Agency.
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de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).

ANALYSIS AND FINDINGS

We must 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. 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. The record reflects that
Complainant submitted a reply in opposition to the Agency’s motion, but it is void of any
alternative statement of the facts, or a statement indicating that there is a dispute with the facts
presented by the Agency. After a review of the record, we find that there are no genuine issues of
material fact or any credibility issues which required a hearing and therefore the AJ’s issuance of
a decision without a hearing was appropriate. The record has been adequately developed,
Complainant was given notice of the Agency’s motion to issue a decision without a hearing, she
was given a comprehensive statement of undisputed facts, and she was given an opportunity to
respond (and did) to the motion and statement of undisputed facts. Under these circumstances, we
find that the AJ’s decision without a hearing was appropriate.

Disparate Treatment & Reprisal
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In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII cases alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor
Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must
establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must
prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency
was a pretext for discrimination. Id. at 256.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
sex and reprisal, we find that the Agency articulated a legitimate, non-discriminatory reason for
each of the actions taken by Agency management. With respect to Complainant’s allegations of
being improperly charged AWOL, the record reflects that she was ultimately only charged AWOL
on March 29, 2014, the only day management was unable to verify that she called to report her
absence.

The record reflects that Complainant was hired by the Agency to work on days based upon the
Agency’s operational needs. Complainant did not have a fixed schedule, and as a result, her
schedule was subject to change. While the Agency acknowledged Complainant’s scheduled day
off was changed, the record reflects Complainant was given notice of at least a week. The record
is void of any evidence that the decision to change Complainant’s day off was based on any
discriminatory animus.

Complainant alleged that she was made to “clock out” early on June 5, 2014. The record reflects
that the Time Attendance and Collection System was cleared daily between 8:50 and 9:50 am. On
the date in question, there was no end tour reflected for Complainant. The supervisor checked
Complainant out as of 5:00 am, the time she last saw Complainant on duty. Nothing in the record
reflects that this was not the procedure normally followed during time and attendance processing.

Complainant’s allegation regarding inadequate pay on June 7, 2014 and being escorted out of work
on June 12, 2014 are not supported by the record. With respect to her inadequate pay allegation,
there is sufficient evidence to establish that PSEs were always paid at a higher level when the work
warranted such pay. Management provided testimony that any time Complainant was not paid at
a higher level, it was because of her failure to properly complete and submit PS Form 1260. On
June 12, 2014, the record reflects that Complainant logged 42.90 hours. PSEs were not permitted
to work more that 30 hours per week, and it was Agency practice to send PSEs home when a
determination was made that they worked more than the permitted 30 hours.
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On June 12, 2014, when Complainant was advised of the policy, and the decision to take her off
the clock, the record indicates that she became belligerent. This, according to the record, was the
reason she was escorted from the building, not the fact that she worked more than 30 hours.

Although Complainant received an evaluation regarding behaviors that she could improve upon in
the workplace, her supervisor still recommended her for retention. The evaluation cited disruptive
behavior, inappropriate cell phone usage, and tardiness as a few items that Complainant could
improve upon. The record reflects that it was common practice for supervisors to include similar
items in performance evaluations when warranted. Additionally, the record reflects that
Complainant refused to discuss her performance evaluation with her supervisor and accused her
of “nit picking.” We find nothing in the evaluation that indicates that it was made based on any
discriminatory basis.

With respect to Complainant’s allegations that she was: (1) denied annual leave on May 5 and 7,
2014; (2) called a “hoe” by her supervisor; (3) denied a 5-day break; and (4) not paid at the proper
level, the record does not indicate that these events occurred. On both dates in May 2014,
Complainant was permitted to leave work once management was made aware that she needed to
leave to prepare for final exams. Complainant indicated that she heard a rumor that one of the
supervisors called her a “hoe.” In fact, Complainant later retracted this claim. While
Complainant’s off week was initially changed from July 21, 2014 to July 7, 2014, the schedule
was ultimately arranged so that Complainant received her desired off week. Any allegations
regarding Complainant not being paid at the Level 7 rate are displaced as nothing in the record
supports the contention that Complainant was performing Level 7 work warranting the higher rate
of pay.

In sum, our review of the record confirms the Agency’s assertion that its decisions were based on
its determination of how best to effectively manage the workplace and its assessment of
Complainant’s performance and conduct in the workplace. Nothing in the record, or submitted on
appeal by Complainant, demonstrates that management’s actions were in any way motivated by
discriminatory animus, or taken because of any prior EEO activity by Complainant. The
Commission has long held that an Agency has broad discretion to set policies and carry out
personnel decisions and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find no evidence
of unlawful motivation on the instant facts.

Harassment

Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile
work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994).
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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.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record, we find that the AJ properly issued a decision without
a hearing finding that Complainant failed to demonstrate she was subject to disparate treatment,
or unlawful harassment. The Agency’s final order adopting the AJ’s decision therefore 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.
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

August 29, 2019
Date