Shaunda D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 15, 2019

0120182817 (E.E.O.C. Aug. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shaunda D.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120182817

Agency No. 1F942001217

DECISION

On August 14, 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
July 13, 2018 final decision concerning her equal employment opportunity (EEO) complaint. She
alleged 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 Full Time Parcel
Post Distribution Machine Operator, PS-06, at the Agency’s San Francisco Network Distribution
Center facility in San Francisco, California.

On October 31, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Caucasian), national origin ("Not Indian" –
European / Irish German), and reprisal for prior protected EEO activity under Title VII, when:

1. On July 1, 2017, and other unspecified dates, Complainant was required to return
to her regular work area, rather than being allowed to complete her shift in the

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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higher-level assignment of Mail Flow Controller, and subsequently, she was no
longer assigned to work as a Mail Flow Controller;
2. On unspecified dates, she was not paid for hours that she worked out-of-schedule;
and
3. On dates from October 23, 2017, and ongoing, Complainant was denied breaks
and lunches.

Complainant raised other claims, pertaining to disparate treatment regarding training, that the
Agency did not accept for investigation and her evidence was not included in the Report of
Investigation (ROI).2

The pertinent record shows that Complainant is a Caucasian woman. She identified her national
origin as “not Indian” and specifically of European / Irish descent. Both immediate supervisor,
second level supervisor and one of her comparators are of Indian descent.

She reports to the Manager, Distribution Operations (Indian). Her second level supervisor is the
Supervisor, Distributions Operations at the San Francisco, P&DC.

Complainant averred that the Supervisor, Distributions Operations at the San Francisco, P&DC.
(Indian) (RMO1) is the management official responsible for taking her out of the Control Room.
He was the acting second-level supervisor. RMO1 acknowledged that he “managed”
Complainant, but he denied that he was involved in the incidents at issue in this case.

Complainant has 22 years of seniority. She is the official alternate for the control room. Her
assigned scheduled hours are 18:00 to 23:30 (Tour 3). RMO1 confirmed the hours, specifically,
that Tour 3 is supposed to end at 23:30. Complainant averred that when she is in the Control
Room and the manager’s wife comes in at 23:00, Complainant is made to leave at that time,
rather than being allowed to stay to the end of Complainant’s tour, which ends at 23:30.

Complainant alleged that three comparators were treated better than she was treated. One
comparator employee is the wife of the named responsible management official (Indian). The
second is Hispanic Latino male. Regarding the third comparator, the race/national origin was not
specified.

Complainant averred that the Latin / Hispanic male is “on the bottom of the seniority list,” but
RMO1 explained that he believed that the Hispanic male was the best qualified.3

2 In addition, Complainant averred that five family members of RMO1 work in Complainant’s
facility and live with RMO1. Along with the wife, Complainant alleged that a niece was given
favored treatment.

3 The record contains two position descriptions (PDs) for Mail Flow Controller position. The
GS-6 PD states that the position is governed by seniority. For the higher-level GS-8 PD, the
assignment is determined by the person deemed the “best qualified.”
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On July 1, 2017, RMO1 averred that her immediate supervisor instructed Complainant to report
back to her primary assignment area. Complainant averred that her immediate supervisor told
Complainant that RMO1 gave her immediate supervisor a direct order to pull Complainant out of
the Control Room at midnight, while the manager’s wife stays in the Control Room.

EEO Activity

She stated that she does not have any other EEO complaints than this. Complainant averred that
she has previously raised sex harassment concerns and fraud concerns with management,4 but
she has complained to the union and another management official, not named in this action.

When asked during the investigation whether the named official was aware of her participation
in any protected EEO activity, Complainant answered “he may be aware from hearing people
talking on the floor that I am seeking EEO.” Report of Investigation, page 6 of Complainant’s
Affidavit. RMO1 was demoted “just recently” as an “MDO,” but he is now serving as the back-
up MDO.

Complainant averred that her understanding was “that one of the complaints that I made about
how he treats those who are of Indian national origin better is the cause for his wife’s out-of-
schedule pay having to be returned to the Postal Service and RMO1’s demotion. Complainant
averred that the wife is the one who “took her higher-level detail and received the out of
schedule pay that I was denied.” She added that “when I have complained to management and
nothing was ever told to me that was done to address my complaints.” 5

4 On an unspecified date, Complainant averred that she complained when RMO1 said to her that
“if my husband was not taking care of me I should go to him.” She stated she wrote a statement
and gave it to the MDO “when [the RMO1] had me surrounded by men to look at my blouse.”
She concedes this happened “some time ago.”

She further complained to the union that RMO1 treats people of a different national origin,
specifically those from India, better than he treats those who are not of the same national origin,
“for me it is because I am not Indian.” It is her understanding that the union filed a grievance
that is at step 3. Since she did not write the grievance, she says “I do not know how the union
framed the wording and contractual violations.”

5 The record includes the Information for Pre-Complaint Counseling. Complainant alleged that
RMO1 “started to retaliate against her by pulling her out of the Control Room early so his wife
can work in there.” She added that she filed a complaint with the Union and referenced a July 14,
2017 grievance. After the Union told RMO1 that Complainant had more seniority, Complainant
averred, “Now, he doesn’t put [Complainant] on the schedule at all, so his wife can stay in.”

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She stated that since her complaint, RMO1 denied her work in the control room and others were
moved into the control room. Complainant states “It started with RMO1, but continues with
those other supervisors. “

RMO1 averred that he was not aware that Complainant had alleged harassment and
discrimination by him against her, or that she asserted, to management and the union, that RMO1
told her if her husband didn’t take care of her, she should come to him, or that she wrote a
statement alleging he had her surrounded by men to look at her blouse, or that she claimed he
treats people of Indian national origin better than he treats others, not of Indian descent.

RMO1 averred that he did not instruct Tour 1 management to move Complainant out of the
Control Room. Instead, RMO1 said Complainant “holds a bid in Secondary and she was asked
to return to her bid when Tour 1 takes over.” RMO1 told the counselor that Complainant was not
needed. He said that he does not supervise his wife and that his wife was moved to Tour 1, so
there would not be any conflict, according to the Counselor’s Report.

The second named management official in this action (Indian) (RMO2) wrote “n/a” when asked
if she were aware of Complainant’s making complaints of harassment and discrimination against
RMO1. See ROI, Affidavit D. The record shows that a third named official (African American)
(RMO2) also claimed to be unaware of Complainant’s prior EEO activity.

The Supervisor Distribution Operations (SDO) said Tour 1 employees take over the Control
Room at 2330, because Tour 3 ends at that time.

Complainant acknowledged that she had to leave her duty station when a person on Tour 1 has a
bid, but the manager’s wife has no bid. No explanation was provided as to why the wife was
arriving a half hour earlier.

Another named management official, RMO3, stated that the Hispanic male comparator was
available at 1150 and the Mail Flow Controller position starts at 1500. She says Complainant
does not come in until 1800. We note, however, that the record shows that the Agency often
called Complainant in at 1500 on several occasions.

The Tour 3 schedule indicates that Complainant was assigned to serve as the Mail Flow
Controller on July 8, 2017 and July 14, 2017 at 18:00 (no end time noted); from 18:00 to 12:30
on July 21, 2017; on August 12, 2017, August 19, 2017 and September 8 -9, 13-15, 2017 (no
hours noted), or for four hours; and on October 6, 2017.

Regarding the second named comparator, the record shows that the Hispanic male is a Clerks
Shop Steward. He was her replacement on “Tour 3, BT-1530, ET-000.”

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Claim 2 – Out of Schedule Pay

Complainant became aware, on June 16, 2017, that she was not getting out-of-schedule pay since
November 14, 2015. She made EEO contact on July 1, 2017. In addition to not receiving her
“out of schedule” pay, she earned less than eight hours of higher-level pay associated with the
main flow control assignment. She claims that she was not receiving compensation for working
through her breaks and lunches, while working in the Control Room.

She identified three managers as the responsible management officials: RMO1, RMO2, and
RMO3. Her immediate supervisor was not named as one of the responsible management officials
on this claim. She compared her treatment to that given to RMO1 (Indian, no prior EEO) and a
Hispanic male, with no prior EEO activity. The Agency states that Complainant failed to identify
the dates that this occurred.

The Agency states that during the time period relevant to claim 2 (defined by the Agency as July
1, 2017 to February 7, 2018), RMO’s wife did not receive any out-of-schedule pay, and the
Hispanic male only received 2.55 out-of-schedule hours. The Agency asserts that Complainant
received 26.50 out-of-schedule hours.

The record indicates that the union filed a grievance on August 25, 2017, over the Agency’s
alleged failure to pay out of schedule pay to Complainant on multiple dates, including November
28, 2015 to May 17, 2017, totally 152 hours of out of schedule pay. The Agency stated that
Complainant got more out-of-schedule pay than the comparators. Nevertheless, the Agency
agreed that Complainant was to be paid for 14 days. The signatory for the union appears to be
the same Hispanic male who replaced Complainant in the mail flow control position and is a
named comparator.

On October 30, 2017, the day before Complainant filed her formal EEO complaint, one of the
named responsible management officials (RMO2) denied the grievance. Management officials
then stated that “no grievance was filed due to a mutual agreement between RMO1 and the
union.”

Claim 3: Denied Breaks and Lunch

Complainant averred that she has complained about not getting breaks or lunch when she works
in the Control Room. It also appears Complainant is alleging that she was not paid for the hours
that she was required to work through lunch.

The Agency asserts that “all Tour 3 employees working as Mail Flow Controllers, not just
Complainant, were denied lunches and / or breaks.” The Agency asserts that this fact belies her
claim that race, national origin, and or prior EEO activity motivated management’s decision to
deny Mail Flow Controllers lunches or breaks. The evidence, however, does not show that
others had a bid to, or were officially assigned on, Tour 3 to serve as Mail Flow Controller, other
than Complainant.
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At the conclusion of the investigation, on May 1, 2018, 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). Complainant maintains that
she submitted a request for a hearing, but the Agency states that it did not receive the request
within 30 days of the date it forwarded to Complainant notice of her right to request a hearing.
The only documentary evidence regarding the date of Complainant’s submission of her Hearing
Request is the envelope the Agency received on July 23, 2018, showing a postmark date of July
18, 2018.

When the Agency did not receive Complainant’s request for 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).

Agency Decision

The Agency concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. The Agency reasoned that Complainant failed to name any similarly
situated comparative employees who were treated more favorably and therefore her claim must
fail. Regarding claim 2 (out-of-schedule pay), the Agency found that, “when Complainant
worked any days off, she does not have a bid, then management can adjust her hours for the
needs of the service without paying any out-of-schedule premium.” The Agency stated that
Complainant was nonetheless paid an out-of-schedule premium, in “order to settle a grievance.”

Regarding the retaliation claim, the Agency found no reprisal, noting that all three named
management officials, including RMO1, denied being aware of Complainant’s prior allegations.
The Agency also found no reprisal because Complainant never identified the dates when she told
the union and management that she felt RMO1 was discriminating against her and so failed to
prove her prima facie claims.

This appeal followed. Complainant did not submit a brief in support of her appeal.

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”).

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Initially, we note that Complainant did not file a brief on appeal and does not challenge the
Agency’s refusal to accept any other claims. Therefore, we consider any objections to the
dismissal of any other claims, that she may have had, as waived on appeal.

Next, we note that this complaint was filed on October 31, 2017. Our consideration of the record
pertains to the allegations for actions occurring on, or prior to, the complaint filing date (October
31, 2017).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
or 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Texas Dep’t of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Burdine, 450 U.S. at 256.

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).

We will assume for purposes of our analysis that management was aware of Complainant’s race
and that Complainant was of a different national origin than RMO1, RMO2, her immediate
supervisor, and her primary comparator employee. It is undisputed that a management official
ordered Complainant to end her shift early after RMO1 told her immediate supervisor that
Complainant was not needed. Two persons not in her protected groups were allowed to replace
her in the higher-pay assignment. Neither of the replacements had any prior EEO complaints.
Complainant was harmed as a result of these actions, because Complainant suffered reduced
hours and pay.

Regarding her reprisal claim, however, the record shows that, although Complainant brought her
harassment concerns to the attention of one management official, she did not aver that she
brought this to the attention of RMO1 or the other named management officials in this action.
Complainant also acknowledged that this happened” sometime ago.”
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Even assuming for purposes of our analysis that Complainant established her prima facie claims,
we find the responsible management officials articulated reasons for its actions, that, if true,
would be legitimate, non-discriminatory reasons. RMO1 told her immediate supervisor that he
believed that Complainant “was not needed” after the Tour 1 replacement arrived. Complainant
was not scheduled because the mail flow control began at 1500 and Complainant’s shift began at
1800. The appointment to the higher-level assignment was based on management’s
determination of who was the “best qualified” and not seniority, under the GS-8 Mail Flow
Controller position description. RMO1 determined that the Hispanic male was the “best
qualified” to serve in the Mail Control position.

The Agency argues that Complainant’s immediate supervisor provided an affidavit in support of
its position. Contrary to the Agency’s statement, the record does not contain an affidavit or other
evidence from her immediate supervisor as a witness to support management’s position. The
investigator confirmed that no affidavit was submitted as the immediate supervisor was on
extended leave.

The absence of the affidavit from her immediate supervisor is not dispositive. We find that the
record is still sufficient for us to make a determination regarding the limited claims before us.

Complainant states that her supervisor told her that RMO1 told the immediate supervisor that he
did not think that Complainant needed to stay in the control room, after the Tour 1 employee
reported for duty. RMO1 confirmed that he made the statement. It is undisputed that the reason
for her being told to leave was that the manager believed Complainant was not needed.

We recognize that Complainant had more seniority than the manager’s wife or the Hispanic male
replacement. Complainant furthered averred that she is the designated backup, not the wife.
Complainant’s seniority standing, however, establishes a potential violation of the collective
bargaining agreement, but not a Title VII violation.

Regarding the retaliation claims, Complainant acknowledged that this was her first EEO
complaint. The record does not show that the named management officials were aware of any
prior harassment claims or protected activity.

Similarly, there is insufficient evidence that she was treated differently than others regarding her
break times or pay, other than the preferential treatment given to RMO1’s wife. The record
provides clear evidence that the manager gave preferential treatment to his wife because of their
marital relationship, not her national origin.

The record reveals favoritism based on nepotism, that was extended primarily to his wife and
RMO1’s other family members.

Even accepting the facts as established as Complainant alleged is insufficient to prove that the
actions were a pretext for unlawful discrimination against Complainant because she is a
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Caucasian woman of European heritage and not Indian. This appears to be an unfortunate
example of unchecked nepotism and poor management decisions.

Consequently, we find that Complainant failed to prove, by a preponderance of the evidence, that
the Agency’s proffered reasons were a pretext for unlawful discrimination on the basis of her
race, national origin, or prior EEO activity.

In addition, we find that any hostile work environment claim must fail due to our determination
that the actions taken by the Agency were not shown to be motivated by unlawful discriminatory
animus. See Complainant v. United States Postal Service, EEOC Appeal No. 01982923 (Sept.
21, 2000). Similarly, to the extent the reprisal claim was based on her revealing problems about
her fraud concerns and nepotism, we have long held that such whistleblowing activity is not
protected EEO activity.

Nevertheless, however, we caution the Agency that Section 717 of Title VII requires that Federal
agencies make all of their personnel actions free of unlawful race and national origin
discrimination. Similarly, our regulation, at 29 C.F.R. 1614.101(a), states that “it is the policy of
the United States to provide equal opportunity in employment for all persons, to prohibit
discrimination in employment because of race, sex, national origin. . . and to promote the full
realization of equal employment opportunity.” The same regulation, at subsection 29 C.F.R.
1614 101(b), provides “no person shall be subject to retaliation for opposing any practice made
unlawful by Title VII.”

Consequently, Complainant, and other Agency’s employees, are entitled to a workplace free of
unlawful discrimination and to receive comparable opportunities for work hours, training,
advancement, and all of the benefits of a model workplace, that the Agency provides to those of
Indian or Latino heritage, without any fear of retaliation. To do otherwise could prove a violation
of the federal EEO laws and show non-compliance with the Agency’s obligations under 29
C.F.R. 1614.102(a)(3) “to conduct a continuing campaign to eradicate every form of prejudice or
discrimination from the Agency’s practices and working conditions.”

For the reasons stated herein, we AFFIRM that 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 tends 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.
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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

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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

August 15, 2019
Date