Margorie F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 24, 2016

0120142798 (E.E.O.C. Aug. 24, 2016)

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

Margorie F.,1
Complainant,

v.

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

Appeal No. 0120142798
Hearing No. 420-2014-00110X
Agency No. 4G-390-0078-13

DECISION

On August 4, 2014, Complainant filed an appeal from the Agency’s July 2, 2014, notice of
final action 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. and Section 501 For the following reasons, the
Commission AFFIRMS the Agency’s notice of final action finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate at the Waynesboro, Mississippi Post Office. Complainant was employed with the
Agency from May 18, 2013, to August 9, 2013.

On October 10, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Black), color (black), and disability
(musculoskeletal) when2 on July 30, 2013, Complainant was terminated during her
probationary period.

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 Complainant added the bases of race and color during the investigation of her complaint.
0120142798

2
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 requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on June 26, 2014.

In his decision, the AJ found Complainant had not established a prima facie case of disparate
treatment discrimination based on race and color. The AJ determined the evidence did not
demonstrate that Complainant was treated less favorably than any similarly situated
individuals, outside of her protected groups, under the same or similar circumstances. The AJ
found even assuming Complainant could establish a prima facie case of disparate treatment
discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions,
i.e., Complainant failed to significantly improve in her ability to case and deliver mail in a
timely manner. The AJ noted Complainant had been made aware of this performance issue but
no improvement had been shown. The AJ stated Complainant was assigned to deliver mail on
Route 9 beginning on June 8, 2013, which was evaluated at 3.67 hours. The AJ noted
Complainant never made that evaluation time even though she delivered the route 14 times.
The AJ noted Complainant averaged 5.71 hours per day to complete a rural route with a
standard time allowance of 3.67 hours per day. The AJ pointed out that another employee who
was not a regular on the route, Person A, delivered Route 9 in 2.83 hours on June 21, 2013.

The AJ noted Complainant identified Person B and Person C as employees that “messed up” as
well but were not terminated. The AJ noted that Person B entered on duty on December 5,
2009, and was not in a probationary period during the time Complainant was on probation.
The AJ noted that Person C entered on duty on April 9, 2011, and was not in a probationary
period during the time Complainant was on probation. The AJ also noted that Supervisor 1
asserted that he was not aware of Person B or Person C “messing up” as alleged by
Complainant and that they completed their assignments in the standard time.

With regard to Complainant’s claim of disability, the AJ found Complainant could not establish
that she was an individual with a disability as she has not identified her alleged disability or
established how her alleged disability impacted her. The AJ also noted Complainant did not
request any type of medical accommodation. In addition, the AJ stated that even assuming
arguendo that Complainant was disabled and otherwise qualified to perform the essential
functions of her job, with or without reasonable accommodation, Complainant failed to
establish a prima facie case of disability discrimination. The AJ found the available evidence
indicated that Complainant’s supervisors and managers were not aware of her alleged
disability, medical condition, and/or limitations. The AJ also determined the Agency proffered
legitimate, nondiscriminatory reasons for its actions. The AJ noted the Agency stated that
Complainant, who was in her probationary period, failed to significantly improve in her ability
to case and deliver mail in a timely manner. The AJ noted Complainant had been made aware
of this performance issue, but no improvement had been shown. The AJ found the evidence
did not demonstrate that the Agency’s explanation for its actions was a pretext for
discrimination.
0120142798

3

The Agency subsequently issued a notice of final action on July 2, 2014. The Agency’s notice
of final action fully implemented the AJ’s finding that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 9, 1999) (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”).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and that
there are no disputes of material fact. We note that Complainant does not challenge the
definition of her complaint on appeal.

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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 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, 120
S.Ct. 2097 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v.
Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

For purposes of this decision, we assume Complainant was a qualified individual with a
disability and that the Agency knew Complainant was disabled. In the present case, the
Agency provided a legitimate, nondiscriminatory reason for its actions. The Agency stated it
terminated Complainant during her probationary period for failure to significantly improve in
her ability to case and deliver mail in a timely manner. We note Complainant failed to identify
any similarly situated individual who were treated differently under similar circumstances.
0120142798

4
Furthermore, we find that Complainant did not request a reasonable accommodation. Upon
review, we find Complainant failed to show that the Agency’s actions were a pretext for
discrimination

CONCLUSION

Accordingly, the Agency’s notice of final action finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).

0120142798

5
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 24, 2016
Date