Natalya B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 11, 20160120142804 (E.E.O.C. Feb. 11, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalya B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120142804 Hearing No. 520-2014-00232X Agency No. 4B-040-0043-13 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the Agency’s June 26, 2014 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee/Post Office Clerk at the Agency’s Post Office in East Wakefield, New Hampshire. On or about July 2013, Complainant was involved in an incident with the Postmaster Relief/Replacement (PMR) who was training her. PMR became upset with Complainant after she failed to follow his instructions and grabbed both of her wrists and pushed her. Complainant reported the incident to the Postmaster and a Threat Assessment Team investigation followed. PMR was placed on Emergency Placement in Off-Duty Status and subsequently issued a Letter of Warning in Lieu of Seven-Day Suspension. 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. 0120142804 2 On August 6, 2013, the Operations Manager (M1) issued Complainant a letter informing her that she was being terminated from employment with the Agency because a review of her prior work history indicated discrepancies in her employment application. In particular, Complainant had indicated in her application that she worked for the Agency full time for over two years at the Nashua Plant and for a few years off and on again as a seasonal employee throughout the 2000s. Agency records revealed that Complainant actually worked at the Nashua Plant from November 14 2005 to December 15, 2005, and at the Manchester Processing and Distribution Center from September 5, 2006 to September 21, 2006. Further, Complainant stated on her employment application that she had never been fired from any job for any reason; however, Complainant’s September 21, 2006 Form 50, Notification of Personnel Action, indicated that Complainant was terminated from the Manchester facility for violation of the Zero Tolerance policy. On September 14, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female), age (57), and in reprisal for prior protected EEO activity when: 1. On July 20, 2013, PMR grabbed both of her wrists and pushed her; and 2. On August 6, 2013, she was terminated from her position as a Postal Support Employee (PSE). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on June 19, 2014. In her decision, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination and reprisal and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was terminated during her probationary period as a Postal Support Employee at the East Wakefield Post Office for falsifying her employment application. The Agency stated that Complainant certified on that application that she had “never been fired from any job.” A subsequent review of Complainant’s prior work history disclosed that Complainant had been fired in 2006, after two weeks of employment as a Casual 2 employee at the Manchester Processing and Distribution Center for having violated the Agency's Zero Tolerance Policy against Violence and Threats of Violence in the Workplace. As evidence of the fact that Complainant falsified her application, the Agency offered a copy of Complainant's online application that was maintained in her electronic official personnel folder. Complainant both reviewed and signed the application at her interview for the position for the East Wakefield Post Office, and there was no mention on the application of Complainant having worked at the Manchester plant. Moreover, Complainant placed her 0120142804 3 initials next to the box "No" for questions having to do with having been fired from a job or quitting a job after having learned she would be fired from it. Complainant initially argued that the Agency's reason for terminating her from her position was pretext for discrimination because she did not knowingly falsify her application as she was unaware she had been terminated. However, record evidence revealed that Complainant later admitted that she knew all along that she was fired by the Agency in 2006. Complainant also argued that she explained on her application that she had previously worked as a casual employee at the Manchester plant, and that “someone whited out that information.” The AJ noted, however, that the record indicated that Complainant submitted her application online via e-Career, effectively eliminating the possibility of someone “whiting out” information on it. Moreover, as set out above, Agency records indicate that Complainant acknowledged that she signed a copy of her application at her job interview affirming its accuracy. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretext for unlawful discrimination or reprisal. In addition, to the extent that Complainant alleged that she was subjected to harassment, the AJ determined that Complainant failed to show that the alleged incidents were based on discriminatory and retaliatory animus. Moreover, with respect to claim (1), the record showed that the Agency took prompt and effective action when informed of the incident by conducting an investigation and disciplining PMR. As a result, the AJ found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency’s termination decision was unfair. Complainant contends that she was never made aware that she was previously fired from the Manchester plant. Further, Complainant claims that she was never interviewed by the Threat Assessment Team. Complainant alleges that the Postmaster could not be impartial, but ran the Threat Assessment Team investigation and later fired her. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 0120142804 4 Disparate Treatment/Reprisal 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. Corp. 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 burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. The Commission agrees with the AJ that assuming arguendo that she established a prima facie case of discrimination and reprisal, Complainant failed to present evidence to rebut the Agency's legitimate, non-discriminatory reasons for its actions. Specifically, M1 affirmed that Complainant was issued the Notice of Termination after the Agency discovered several discrepancies in her employment application including her failure to disclose that she had previously been terminated from another post office facility for violating the Zero Tolerance Policy. ROI, at 219. M1 noted that the application clearly stated that a false or dishonest answer to any question may be grounds for termination. Id. at 220. M1 consulted with the Labor Relations Office regarding the matter, and she was advised that termination was the proper course of action. Id. at 224. As a result, Complainant was issued the Notice of Termination on August 6, 2013, for the discrepancies in her employment application. Id. at 131. Construing the evidence in the light most favorable to Complainant, the Commission finds no evidence that Complainant's protected classes were factors in any of the Agency’s actions. 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 retaliatory animus. Complainant failed to carry this burden. Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission finds that Complainant failed to establish that any of the alleged incidents were motivated by discriminatory or retaliatory animus. Moreover, the Commission notes that, with respect to claim (1), the record reveals that management took prompt and effective corrective action upon Complainant’s report of the alleged incident with PMR by placing him on Emergency Placement in Off-Duty Status, conducting an investigation, and disciplining him. As a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 0120142804 5 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 order, because the Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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). 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. 0120142804 6 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 February 11, 2016 Date Copy with citationCopy as parenthetical citation