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

Equal Employment Opportunity Commission

Mar 27, 2018

0120160303 (E.E.O.C. Mar. 27, 2018)

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

Mary E.,1
Complainant,

v.

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

Appeal No. 0120160303

Agency No. 4C-450-0020-15

DECISION

On October 6, 2015, 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
September 3, 2015, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended (Title VII), 42 U.S.C. § 2000e et seq. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate on a probationary basis at the Agency’s Post Office in Westerville, Ohio.

On March 3, 2015, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the basis of her race (Hispanic) when:

1. On or around December 1, 2014, Complainant was terminated; and

2. On November 21, 2014 and December 5, 2014, Complainant was not properly paid.

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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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 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).

The Agency determined that Complainant failed to prove that it subjected her to discrimination
as alleged. With regard to claim (1), the Agency observed that Complainant stated that on
November 29, 2014, she checked the posted schedule and saw she was not listed. Complainant
asserted that she asked her Supervisor if she and another Rural Carrier Associate were needed
the following day, and the Supervisor replied that they were not needed. Complainant stated that
she asked her Supervisor a second time and she issued the same response. According to
Complainant, she told the other Rural Carrier Associate they were not needed Sunday and they
did not report to work. Complainant claimed that discrimination is evident given that the other
Rural Carrier Associate who is Caucasian was not terminated and did not receive discipline.

The Agency found that the Supervisor asserted that she told Complainant she had to report to
work on Sunday, November 30, 2014, but Complainant failed to report to work. The Supervisor
maintained that Complainant had requested to come in on Sunday and scan packages and the
Supervisor asserted that she replied no, she needed to carry on Sunday. The Supervisor stated
that the other Rural Carrier Associate failed to report for work based on the erroneous
information provided to her by Complainant. The Officer in Charge asserted that he decided to
terminate Complainant. According to the Officer in Charge, Complainant had on several
occasions willfully delayed mail and intentionally did not follow instructions given by her
supervisors. The Agency cited these examples presented by the Officer in Charge:

1. On or about November 24, 2014, Complainant left her mail on the floor because she was
upset that her pay adjustment had not come through yet.

2. On or about November 26, 2014, Complainant was casing Rural Route 17 at 4:00 in the
afternoon. This is around the time Complainant should have been coming back on the
route. Management had completed her pay adjustment and had given her a money order
for her pay adjustment. Complainant left to go to the bank and was supposed to come
back but did not. Instead, Complainant went all over town paying bills and did not
answer her phone when they called. Therefore, other people had to deliver the mail.

The Agency found that the Officer in Charge asserted that all Rural Carrier Associates had been
informed they had to work on Sunday and that all of the other Rural Carrier Associates reported
to work. The Supervisor stated that an announcement was made over the loudspeaker on
November 29, 2014, that the Rural Carrier Associates were needed to come in on Sunday.
According to the Officer in Charge, Complainant was not entitled to any warning or discipline
prior to her termination because she was a probationary employee. The Agency noted that the
Officer in Charge stated that Complainant was afforded a second chance when after being
terminated the day after Thanksgiving, she was brought back to work on Saturday, November
29, 2014.
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The Supervisor explained that Complainant was issued a money order around Thanksgiving to
make up for her payment problems while she was still at work before Thanksgiving. According
to the Supervisor, Complainant was still in the office around 4:30 p.m. with her entire route to
deliver and Complainant asked her if she could go to the bank to deposit the money order
because she had outstanding bills. The Supervisor asserted that Complainant stated she would
return to the facility when she completed what she needed to do at the bank. The Supervisor
stated that Complainant did not return to carry her route and she and the Officer in Charge had to
get other carriers to cover her route.

As for claim (2), Complainant claimed that she was not paid properly on November 21, 2014,
and December 5, 2014. The Agency noted that Complainant stated that the payment concerning
the first date at issue was resolved, but that the payment concerning the second date at issue was
pending a grievance that had been filed. With regard to the December 5, 2014, date,
Complainant argued that she should have received pay for 77.5 hours and mileage for 137.60
miles. Complainant asserted that she was repeatedly promised that she would be issued a money
order, but that only happened with respect to the first incident. Complainant stated that she did
not believe any of the Caucasian employees, especially management, had any problems with
their pay.

A Postmaster from a different facility stated that she was instructed to address problems
regarding a pay situation at Complainant’s facility. According to the Postmaster, the facility had
an Acting Supervisor who had failed to pay any of her employees. This Postmaster asserted that
there were approximately 35 employees who had pay issues for whom she did pay adjustments.
The Postmaster stated that doing Rural Carrier pay from management’s perspective is the hardest
pay to do as it is very complicated. The Officer in Charge stated there were multiple employees
who needed pay adjustments during the relevant period.

The Agency determined that Complainant failed to establish a prima facie case of discrimination
as to both claims. With respect to claim (1), the Agency took note of Complainant’s argument
that the other Rural Carrier Associate who did not report to work on November 30, 2014, and is
Caucasian, was not disciplined or terminated. The Agency, however, stated that the comparison
employee was not similarly situated to Complainant as she is a career employee who is not in a
probationary status. The Agency further stated that the comparison employee did not report to
work because she was informed by Complainant that they were not needed that day.

As for claim (2), the Agency stated that the issue of Rural Carriers not being paid was an
office-wide matter and affected most, if not all, of the Rural Carriers in the facility. Thus, the
Agency reasoned that Complainant’s claim that she believed Caucasian employees were not
subjected to the same treatment was not shown to be true.

The Agency determined that its aforementioned explanation constituted legitimate,
nondiscriminatory reasons for its actions. With regard to Complainant’s attempt to establish
pretext, the Agency stated that Complainant relied on the disparate treatment accorded the
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Caucasian Rural Carrier Associate who also failed to report to work on November 30, 2014. The
Agency reiterated its position that this employee, unlike Complainant, was not in a probationary
status, and the only reason she did not report to work was because Complainant told her not to do
so. The Agency further noted that in her formal complaint and informal complaint, Complainant
stated that she had discussed scanning with her Supervisor in terms of whether she had to work
on Sunday, November 30, 2014. The Agency reasoned that this bolstered its position that the
Supervisor told Complainant she was not needed in early to scan. The Agency stated that if there
was some misinterpretation between what the Supervisor believed she told Complainant and
what Complainant thought she heard, Complainant failed to show that any such misinterpretation
was based on her race. The Agency further noted that Complainant had already been terminated
once but was given an additional chance. The Agency stated that although Complainant
provided an explanation for why she did not report back to the office to deliver her route on
November 26, 2014, she did not explain why she failed to contact management to inform them
she was unable to deliver her route. The Agency determined that Complainant failed to establish
that its reasons for her termination were pretext intended to hide discriminatory motivation.

With regard to claim (2), the Agency stated that the payment issue was resolved up to the point
at which Complainant received a money order prior to Thanksgiving. The Agency rejected the
claim of race being a factor in any improper payment based on there being a facility-wide
problem with Rural Carriers’ pay. The Agency stated that the situation necessitated a Postmaster
from a different facility being brought in to do the pay adjustments for approximately 35
employees. The Agency determined that Complainant did not establish that its explanation for
its actions was pretext intended to mask discriminatory motivation.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that her coworker who also did not report to work on the day
in question should have at least been written up for not reporting to work and/or listening to a
coworker. As to claim (1), Complainant maintains that she was too upset to deliver the mail on
November 26, 2014. According to Complainant, she became upset because she received a
money order for 60% of her pay rather than her full paycheck. Complainant states that she had
to drive to several locations before she was able to cash the money order. Complainant argues
that she tried to call the facility several times to notify them of what was happening but no one
answered. Complainant claims that she was never told that she was receiving a second chance.
With regard to the conversation with her Supervisor, Complainant reiterates that the Supervisor
did not mention the announcement about work being mandatory on Sunday and that the
Supervisor told her twice that she and her coworker were not needed on Sunday. Complainant
submits a copy of a grievance where she prevailed as to back pay for the dates of November 15-
28, 2014.

In response, the Agency asserts that the coworker at issue was not a probationary employee like
Complainant and the circumstances under which the coworker failed to report were not the same
as the circumstances under which Complainant failed to report to work.
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The Agency notes that Complainant states she prevailed in a grievance proceeding regarding
matters at issue in the instant complaint, but that she has not been paid. The Agency states that
Complainant should raise this matter through the grievance forum.

ANALYSIS AND FINDINGS

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. 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 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency 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).

We shall assume arguendo that Complainant set forth a prima facie case of race discrimination as
to both of her claims. The Agency asserted as to claim (1) that Complainant was terminated
because Complainant had on several occasions willfully delayed mail and intentionally did not
follow instructions given by her supervisors. The Agency noted that the final incident that led to
Complainant’s termination was her failure to report to work on Sunday, November 30, 2014,
despite there being an announcement over the loudspeaker that all Rural Carrier Associates were
to report to work that day. In terms of claim (2), the Agency explained that an Acting Supervisor
failed to pay any of her 35 employees. The Agency stated that Complainant was issued a money
order and that the payments that were not made were attributable to the Acting Supervisor’s
negligence, which affected employees of all races. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions at issue in each claim.

With respect to Complainant’s attempt to establish pretext as to her termination, we find that
Complainant’s argument lacks merit. Complainant points to the absence of a termination or
discipline for her Caucasian coworker who also failed to report to work on the day in question.
However, the record reflects that this coworker was in a career status rather than Complainant’s
probationary status, and the coworker did not report to work only because she relied on
information from Complainant. We find that Complainant has failed to establish that the
Agency’s explanation for her termination was pretext intended to hide discriminatory motivation.

With regard to the payments at issue, we find that Complainant has not shown that the lack of
timely proper payments was attributable to her race.
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The Agency experienced a facility-wide payment breakdown due to the Acting Supervisor’s
inaction. Complainant acknowledges that the payment issue for the first date in question was
resolved. Complainant stated in her affidavit that her pay was corrected as she received a money
order for 60% of her pay on November 26, 2014, and the remainder was paid on January 2, 2015.
We observe that Complainant pursued the additional amounts she claimed was owed her through
the grievance process and was a prevailing party. To the extent that any amounts owed remain
outstanding from this grievance decision, Complainant is advised that she should raise this
matter in the grievance forum.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final 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
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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.
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

March 27, 2018
Date