[Redacted], Sylvia B., 1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 10, 2020

Appeal No. 2019005003 (E.E.O.C. Mar. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sylvia B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019005003 Agency No. 1G721001918 DECISION On July 12, 2019, 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 July 12, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, PS-4, at the Agency’s Little Rock Processing and Distribution Center facility in Little Rock, Arkansas. On October 12, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and race (African-American) when, on June 2, 2018, she was taken off her higher-level detail. Complainant subsequently alleged retaliation as an additional basis for her being relieved of her higher-level detail. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts: 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. 2019005003 2 Regarding Complainant’s allegation of retaliation, Agency records indicate that Complainant had no prior EEO complaints. Complainant has not provided any information to establish prior EEO activity. Complainant began serving on a detail as an Acting Supervisor in August 2016. She continued in this capacity until on or about June 2, 2018, when she was informed by the Plant Manager (Plant Manager) (male, race unknown) that she was being relieved of this position. Complainant alleged that Plant Manager informed her that she was being relieved of her position for the following reasons: to work on her health; she misses too many days; she does not do Requests for Information (RFI’s); she says, “I don’t know” over the radio; she signs too many grievance extensions; upper management instructed it be done; she should be doing better than she was after more than a year of acting supervisor; she doesn’t answer her radio; she took three weeks of approved annual leave, unlike anyone else; and she had issues with other upper management. Complainant denied these reasons were true. Complainant attested that there were no one-on-one reviews of her performance; at the time she was relieved from the detail, she had only one absence; there were days when she, along with other supervisors, could not work six days per week; and she had approved FMLA leave. Plant Manager explained that he relieved Complainant of her higher-level detail because of her job performance, including not holding employees accountable, failing to follow the EL-801 Employee and Labor Relations Manual, and because of her attendance. He explained that the decision to do so was his, but he had advice from his Senior Manager Distribution Operations (Sr MDO) and Senior Plant Manager (Sr Plant Manager). Plant Manager further explained that, on weekends when Complainant was in charge, she did not follow his instructions; she could not run an operation and employees complained that did not give them direction and could not be found; he personally could not reach her on her phone/radio and later found her in the supervisor’s/general clerk’s office with the lights out and claiming she had a migraine; and she was giving union extensions on grievances that belonged to other supervisors. He attested that he discussed Complainant’s performance issues with her on numerous occasions. He also attested as to Complainant’s difficulties working her schedule with her school schedule and doctor’s appointments. Sr MDO (male, race unknown) attested that he concurred with the decision to relieve Complainant of her detail when Plant Manager told him that Complainant was missing work because she was not setting a good example to the craft and should be held to a higher standard as an Acting Supervisor. 2019005003 3 The Agency’s records document Complainant’s attendance and show scheduled leave prior to November 3, 2017; 2.67 hours of unscheduled sick leave on November 3, 2017; unscheduled sick leave from December 21 through 31, 2017 (including non-scheduled days); 24 hours of unscheduled emergency annual leave from March 22 through 24, 2018; FMLA for sick leave and LWOP in May, June, August, and September 2018. Complainant’s last day in pay status was August 31, 2018. Complainant resigned on October 1, 2018. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant asserts that the Agency did not address the basis of retaliation in its decision and that investigation was not included in the final decision. On appeal, the Agency acknowledges that it failed to address Complainant’s allegation of retaliation in its June 12, 2019 final decision but asserts that it rescinded that decision in its July 24, 2019 final decision and, in that superseding decision, addressed Complainant’s alleged bases of sex and retaliation.2 The Agency asserts that Complainant has failed to satisfy her burden of demonstrating a basis for disturbing its finding of no discrimination and asks that we affirm its finding. 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 has alleged that the Agency treated her disparately with respect to relieving her of her higher-level detail assignment. A claim of disparate treatment is examined under the three- part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). 2 Complainant’s formal complaint and the EEO counselor’s report indicate gender and race as Complainant’s alleged bases of discrimination. The Agency’s decision, however, does not include race as an alleged basis. 2019005003 4 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that Complainant was relieved of her detail for performance and attendance problems as discussed above. We note that, although Complainant attested that she had only missed one day while on detail, the Agency’s records show numerous absences as noted above. Although Complainant has alleged discrimination based on race and gender and a retaliatory animus, she has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus. 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. 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. 2019005003 5 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 March 10, 2020 Date