[Redacted], Glynda S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 16, 2021Appeal No. 2021001836 (E.E.O.C. Aug. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glynda S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021001836 Hearing No. 430-2019-00595X Agency No. 1K-291-0022-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 24, 2020, 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. ISSUE PRESENTED The issue is whether Complainant established that the Agency retaliated against her when it terminated her employment during her probationary period. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee Mail Processing Clerk at the Agency’s Processing and Distribution Center in Greenville, South Carolina, and she began her employment on November 24, 2018. 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. 2 2021001836 On February 18, 2019, a Manager, Distribution Operations (MDO) issued Complainant a notice terminating her employment during her probationary period for failure to be in regular attendance, effective February 19, 2019. Report of Investigation (ROI) at 99. On May 1, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity,2 when on February 19, 2019, Complainant was terminated during her probationary period for unsatisfactory attendance. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request. The AJ remanded the complaint to the Agency to issue a final decision, pursuant to 29 C.F.R. § 1614.110(b). On March 24, 2020, the Agency issued a final decision finding no discrimination. The Agency found that Complainant had not established a prima facie case of retaliation, but assumed for the sake of argument, that she had. The Agency then determined that management officials articulated a legitimate, nondiscriminatory explanation for their actions when they terminated Complainant due her failure to be regular in attendance. The Agency noted that the record evidence showed that Complainant was not regular in attendance, with seven absences during her time of employment. The Agency then found that Complainant did not show pretext for discrimination because her unsubstantiated assertion that management was motivated by discriminatory animus was not evidence, nor supported by any information in the case file. Specifically, the Agency found that Complainant provided no witness statements, documentary evidence, or any other direct evidence to support her allegation. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal but did not provide any arguments in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTION ON APPEAL The Agency states that the final decision properly concluded that Complainant did not establish that she was subjected to discrimination. The Agency notes that the record is devoid of any evidence contradicting the final decision, and that Complainant did not present any evidence on appeal. The Agency requests that the Commission affirm its final decision finding no discrimination. 2 Complainant alleged retaliation when management officials did not attend a mediation, which was scheduled for April 12, 2019. ROI at 6, 8. 3 2021001836 STANDARD OF REIVEW 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 Chap. 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”). ANALYSIS AND FINDINGS Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of retaliation, we find that the Agency proffered legitimate, nondiscriminatory reasons for its action. MDO stated that Complainant was separated during her probationary period for failure to be in regular attendance. MDO stated that she explained to Complainant that employees need to show that they are reliable while on probation. ROI at 73, 75. Another manager stated that she was the concurring official, and that Complainant’s employment was terminated based on her attendance during her probationary period. ROI at 79. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, 4 2021001836 contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant did not provide any arguments on appeal. In her affidavit, Complainant stated that she only missed three days of work, per her doctor’s instructions, and that an attendance problem was never brought to her attention. ROI at 61. However, Complainant did not show that the Agency’s reasons were not worthy of belief. Rather, the record shows that Complainant requested leave on December 21-22, 2018, January 4 and 21, 2019, and February 4, 8, and 15, 2019. ROI at 91-7. In addition, Complainant’s 60-day and 80- day performance evaluations show that she was rated Unacceptable for Dependability, Work Relations, Work Methods, and Personal Conduct. ROI at 98. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s action. Accordingly, we find that Complainant did not establish that the Agency retaliated against her when it terminated her employment during her probationary period. 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 final decision finding that Complainant did not establish that the Agency retaliated against her when it terminated her employment during her probationary period. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 5 2021001836 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 6 2021001836 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 August 16, 2021 Date Copy with citationCopy as parenthetical citation