Opal V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 17, 20180120180926 (E.E.O.C. Oct. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Opal V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120180926 Agency No. 4K300008717 DECISION On January 19, 2018, 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 December 21, 2017, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency’s Snellville-Centerville Post Office in Snellville, Georgia. On May 23, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on February 1, 2017, Complainant was issued a Notice of Removal containing two charges of unsatisfactory work performance for failure to observe safety rules/regulations and follow instructions. 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). 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. 0120180926 2 When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove the Agency subjected her to discrimination as alleged. The Agency determined that management had articulated legitimate, nondiscriminatory reasons for removing Complainant from federal service due to concerns regarding her ability to observe safety rules/regulations and follow instructions. In so finding, the Agency noted that during an investigative interview on December 29, 2016, Complainant was unable to provide an acceptable explanation or justification for her actions. The Agency also noted that Complainant had previously received a 14-day suspension on April 30, 2016, for failure to observe safety rules/regulations and follow obstructions. In finding no discrimination, the Agency rejected Complainant’s allegation that she had been falsely accused of violating safety rules and regulations. The Agency found that Complainant failed to prove by a preponderance of the evidence that management’s legitimate, nondiscriminatory reasons were pretext for retaliation. 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”). 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. See Complainant v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period and in such a manner that a reprisal motive is inferred. Complainant v. Dep’t of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Once Complainant establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate burden to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). For the purposes of our analysis, we shall assume arguendo that Complainant has established a prima facie case of reprisal. The Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. 0120180926 3 The investigative record shows that Complainant’s supervisor had previously issued Complainant a Notice of Removal in April 2016, for unsatisfactory work performance due to her failure to observe safety rules/regulations and follow instructions. Following a grievance and EEO complaint in response to the removal, the Agency reduced the Notice of Removal to a 14-day suspension. Complainant’s supervisor explained that she issued Complainant another Notice of Removal on February 1, 2017, when a District Safety Specialist observed Complainant again violating safety rules in December 2016. In issuing the Notice of Removal, Complainant’s supervisor noted that Complainant already had a 14-day suspension on file and that removal was the next step in the progressive discipline process after a 14-day suspension. Complainant has failed to show that the Agency’s legitimate, nondiscriminatory reasons for issuing a Notice of Removal were pretextual. Complainant has not shown that the District Safety Specialist was incorrect in the safety observations or shown that the actions of the District Safety Specialist would have been motivated by retaliation. We note that Complainant received two Notices of Removal within a span of one year for safety violations. Despite Complainant’s repeated violations, the Agency reduced the Notices of Removal to 14-day and 7-day suspensions and allowed her to remain employed. While Complainant alleges that the February 1, 2017 Notice of Removal was retaliatory in nature, the record shows that managers at the Snellville-Centerville Post Office removed an employee in July 2015, for committing similar offenses as Complainant. That employee, unlike Complainant, had no prior EEO activity. CONCLUSION We AFFIRM the Agency’s decision finding no discrimination. 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. 0120180926 4 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. 0120180926 5 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 17, 2018 Date Copy with citationCopy as parenthetical citation