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

Equal Employment Opportunity Commission

Nov 7, 2018

0120171573 (E.E.O.C. Nov. 7, 2018)

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

Maren K.,1
Complainant,

v.

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

Appeal No. 0120171573

Agency No. 1C371004916

DECISION

On March 23, 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
February 22, 2017 final agency decision (FAD) 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 FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee (PSE) Mail Processing Clerk at the Agency’s Processing and Distribution Center in
Memphis, Tennessee. Complainant initially worked on Tour 2 at the main plant; however, on or
about February 29, 2016, management verbally informed Complainant that she would need to
report to the Jet Cove Annex and that her tour had changed to Tour 3. Complainant claimed that
no notice or general reason was given.

On or about March 2, 2016, Complainant claimed that she called the Agency’s Call-In Center to
report her absence from work on March 2, 2016 and March 3, 2016.

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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Upon the receipt of her paycheck two weeks later, Complainant learned that she was charged with
four hours of emergency unscheduled annual leave for each of the days although she claimed that
she did not submit a PS Form 3971, Request for or Notification of Absence.

On July 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female) and in reprisal for prior protected EEO activity when:

1. On March 3, 2016, Complainant’s schedule was changed to a different tour; and

2. On March 2 and 3, 2016, Complainant was charged the incorrect leave type.

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). When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to
29 C.F.R. § 1614.110(b).

In its FAD, the Agency determined assuming, arguendo, that Complainant established a prima
facie case of discrimination and reprisal, management articulated legitimate, nondiscriminatory
reasons for their actions. Regarding claim (1), the Manager of Distribution Operations (S2)
testified that senior management officials made the decision to change schedules based on
organizational needs. He added that as a PSE, Complainant did not have seniority rights and could
be moved from one tour to another and from one facility to another. Complainant’s supervisor
(S1) indicated that S2 made the decision to move three PSE clerks to her unit and affirmed that as
a PSE, Complainant could be moved at any time. S1 alleged that the change was due to a shortage
of staff on Tour 3. Moreover, S1 stated that the decision to move the clerks coincided with
discussions with union officials. With respect to claim (2), the Agency noted that a supervisor
(S3) testified that Complainant was charged with emergency unscheduled annual leave pursuant
to Complainant’s request through the Call-In Center.

The Agency concluded that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she was not the most junior employee and that union
officials advised that she could not be moved based on juniority. Complainant claims that while
S2 and S3 indicated that they were unaware of her prior EEO activity, they were involved in her
prior claim. Complainant contends that she was subjected to adverse employment actions through
multiple schedule changes and changes in her responsibilities. Complainant purports that S2
commented that he does not deal with personal issues such as babysitting which is evidence of sex
discrimination. Complainant contends that a causal connection exists between the alleged
incidents and her prior EEO activity because her prior case remains open.
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Complainant claims that she provided names of individuals that were treated differently, but the
investigator failed to create a sufficient basis from which to draw an inference of discrimination.
Complainant contends that the other employees were only moved to provide a valid reason for
Complainant’s reassignment. Complainant alleges that PSE Clerks work all tours and
management’s failure to work with her was discriminatory. Accordingly, Complainant requests
that the Commission reverse the FAD.

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
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”).

Disparate Treatment

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). Complainant must initially 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Here, we find that assuming, arguendo, Complainant established a prima facie case of
discrimination based on sex and reprisal, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions.

With respect to Complainant’s claim that her schedule was changed to a different tour, S2 affirmed
that senior management officials, including the Plant Manager, made the decision to change
several employees’ schedules based upon the needs of the service. Investigative File (IF) at 78-
79. S1 stated that S2 made the decision to move three PSE Clerks from her unit, including
Complainant, from the automation section on Tour 2 of the main plant to Tour 3 at the Annex at
Jet Cove. Id at 69-70. She explained that PSE Clerks could be moved at any time, but in her
absence, a Lead Clerk provided the names of employees to be moved due to a shortage in staff at
Jet Cove. Id. at 69, 71.
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S1 stated that Complainant was granted additional time to remain on Tour 2 and once that ended,
Complainant called out of work for multiple weeks. Id. at 71. S1 reported that during
Complainant’s absence, the need arose for an employee on Tour 2 and, at the advisement of S1,
S2 allowed Complainant to work on Tour 2. Id. S2 maintained that management officials acted
within their rights and in accordance with the union contract. Id. at 81.

Regarding Complainant’s claim that she was charged the incorrect leave type, S3 affirmed that she
entered Complainant’s leave on March 2, 2016. IF, at 85. Likewise, S1 reported that S3 was
responsible for charging Complainant with leave when she called in. Id. at 64. Specifically, S3
noted that she charged Complainant with four hours of unscheduled emergency annual leave on
March 2, 2016, and four hours of unscheduled emergency annual leave on March 3, 2016. S3
stressed that Complainant requested the leave on March 2, 2016, via the Call-In Center. She added
that Complainant would have been charged with an absence without leave if she had not called in
to request leave. Id. at 86. While Complainant argues that she was inappropriately charged with
the incorrect leave, she failed to establish, and the record does not reflect, that Complainant did
not request the charged leave when she called the Call-In Center.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant failed to request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate
burden remains with Complainant to demonstrate by a preponderance of the evidence that the
Agency’s reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
or reprisal as alleged.

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 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

November 7, 2018
Date