0120170151
07-11-2018
Mozella M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mozella M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120170151
Hearing No. 4F900023315
DECISION
On March 29, 2016, 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 7, 2016, final decision 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 decision.
ISSUES PRESENTED
Whether Complaint was untimely in filing her request for a hearing before an EEOC Administrative Judge (AJ) and whether she was discriminated against based on reprisal (prior EEO activity) when she was denied two days of annual leave.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Lomita Post Office facility in Lomita, California. On April 22, 2015, Complainant's request for annual leave for April 24 - 25, 2015 was denied. Complainant filed a formal complaint dated July 31, 2015. The complaint was investigated. On October 16, 2015, the Agency mailed to Complainant and her representative via certified mail, return receipt requested, copies of the investigative file and notice of Complainant's right to request a hearing. The notice informed Complainant that she had thirty (30) days from its receipt to request a hearing. Complainant and her representative's request for a hearing was due by November 18, 2015. Complainant did not request a hearing until July 28, 2016. The Agency moved to dismiss Complainant's request for a hearing. The AJ granted the Agency's request and remanded the complaint to the Agency for the issuance of a final agency decision (FAD). On September 7, 2016, the Agency issued a FAD finding that Complainant had not been discriminated against when she was denied Annual Leave on April 24 and 25, 2015.
Concerning Complainant's claim that she was discriminated against based on reprisal when she was denied annual leave, the record indicates that the Agency required that requests for annual leave be made within in a reasonable time to make sure that it has sufficient resources and staff to administer services. Employees who requested leave had to submit their request(s) at least ten (10) days before the date of the annual leave.
In the instant case, Complainant submitted her request four (4) days before her requested annual leave. A1 was assigned to administer the Agency's leave policies and practices at the time of these events. A1 stated that she was unaware of Complainant's prior EEO activity. A1 subsequently found out that her name had been included in an earlier settlement agreement involving Complainant. A1 was unaware because she had not been an active participant in that complaint.
A1 denied Complainant's request for leave on April 24 and 25, 2015. At the time of A1's decision, the "Leave Board" was "full." According to A1, Complainant was not the only employee who was denied leave. She also maintained that the Agency would not have been able to provide standard services on those dates if all the requests were granted.
Complainant contended that two junior employees, C1 and C2, had been approved for annual leave for a period covering the same days she requested, and that she (Complainant) should have been given preference over C1 and C2. Although technically correct, the record indicated that A1 and a representative of the union agreed that no employee would be approved leave unless the request was submitted in a timely manner.
Further, the record indicated that employees could replace other employees who had changes in their plans. For example, an employee, during this time period, changed his plans for taking leave. However, the opening was given to an employee who had requested leave earlier than Complainant.
CONTENTIONS ON APPEAL
Complainant did not submit a brief on appeal. The Agency, in its statement, reiterated its contention that Complainant's hearing request was properly dismissed and that Complainant was not discriminated against based on her prior EEO activity.
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").
At the outset, we note that Complainant's request for a hearing was filed in an untimely manner. Therefore, the AJ was within his authority to deny Complainant's request for a hearing.
Disparate Treatment and Reprisal
Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
To meet her burden of proving that the Agency's actions were pretextual, Complainant needs to demonstrate such "weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014).
Regarding Complainant's claim of reprisal, even if we assume that she established a prima facie case, the Agency provided legitimate, non-discriminatory reasons for the denial of Complainant's request for leave. A1 denied that Complainant's prior EEO activity was a factor in her decision in this matter. Complainant did not produce any evidence that A1's reasons for denying Complainant's request, i.e., that the request was untimely and that when it was submitted the Leave Board was full, were a pretext for discrimination based on her prior EEO activity. The Agency provided evidence showing that the Leave Board was full.
Moreover, while Complainant argues that C1 and C2, who were junior to her, were granted leave, we do not find that this is evidence of reprisal discrimination. In this regard, we note that management and the union agreed that leave request had to be submitted in a timely manner. Moreover, even absent such an agreement, alleged violations of seniority rules do not indicate that a discriminatory motive played a role here.
Accordingly, we find that Complainant has not established that the Agency's legitimate, non-discriminatory reason for the denial of her request for annual leave is a pretext for discrimination.
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 FAD.
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.
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
__7/11/18________________
Date
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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