Mirtha H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Oct 21, 2016

0120151011 (E.E.O.C. Oct. 21, 2016)

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

Mirtha H.,1
Complainant,

v.

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

Appeal No. 0120151011

Hearing No. 480-2012-00636X

Agency No. 4F-926-0034-12

DECISION

Complainant filed an appeal from the Agency’s final order dated November 6, 2014, finding
no discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint filed on March 7, 2012, Complainant alleged discrimination based on race
(Black) and in reprisal for prior EEO activity when on November 19, 2011, her work hours
were reduced and on January 13, 2012, she was issued a letter of separation from the Agency.
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On September 29,
2014, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

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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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that on October 17, 2011, Complainant
was hired as a transitional Postal Support Employee (PSE) Mail Processing Clerk at the
Norwalk Post Office in Norwalk, California. As a PSE, Complainant was a non-career
bargaining unit employee intended to provide the Agency with flexibility and was subjected to
a probationary period of 90 days. Complainant claimed that on November 19, 2011, her
Postmaster reduced her work hours from 40 or more hours per week to approximately 8 to 16
hours per week and on January 13, 2012, she was issued a letter of separation.

With regard to the alleged work hours, the Postmaster indicated that Complainant, as any other
PSEs, was not guaranteed any hours and her hours were governed by the Agency budget and
volume of mail. The Postmaster also stated that PSEs usage for hours was capped at certain
percentage levels during specific pay periods; regular employees must be offered overtime
before it was offered to PSEs; and PSEs were used as support staff when regular employees
were on annual leave, sick leave, or any other kind of leave. Complainant admitted that on the
alleged incident date, her work hours were reduced because there was no work available.

With regard to the letter of separation, the Postmaster indicated that he decided to terminate
Complainant from her employment during her probationary period because she failed to follow
instructions on three occasions when: on October 31, 2011, she questioned management about
her unpaid wages and when a supervisor (S1) informed her that S1 would look into it and told
her to leave S1’s office, she refused to leave and told S1 that she would not leave until she got
her money; on November 28, 2011, she failed to follow her supervisor’s (S2) order that she
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accompany S2 to the Postmaster’s office; and on December 3, 2011, the Postmaster instructed
her in the proper way of distributing working flats to carriers’ cases and she told the
Postmaster that her method was better than the Postmaster’s instruction and failed to follow
such instruction.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. We also find that
Complainant failed to show that there were any similarly situated employees not in her
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant \failed to show that the Agency’s actions were motivated
by discrimination as alleged.

CONCLUSION

Accordingly, the Agency’s final order 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
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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

October 21, 2016
Date