Sheila I.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 20180120171940 (E.E.O.C. Nov. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheila I.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171940 Agency No. 4G335021216 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 19, 2017 final agency decision (FAD) 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 Computerized Forwarding System (CFS) Mark-Up Clerk, P-06, at the Agency’s Tampa CFS facility in Tampa, Florida. On October 3, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), color (White), and age and in retaliation for prior protected EEO activity. She specifically alleged that the Agency discriminated against her: (1) on the basis of sex and in retaliation when, on July 20, 2016, the Agency’s management issued her a Letter of Warning and (2) on the basis of sex, race, and age 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. 0120171940 2 and in retaliation when, on July 22, 2016, she became aware that she was included in the rotation of allied duties. The Agency accepted the complaint and conducted an investigation, which revealed the following pertinent facts. On July 20, 2016, Complainant’s supervisor issued Complainant a Letter of Warning for Improper Conduct – Failure to Follow Instructions. Complainant testified that her supervisor and the manager of the mail forwarding unit made the decision to issue the letter after she dispatched one piece of mail. She asserted that the piece of mail at issue was priority mail and she dispatched it five minutes before the end of her tour because, had she not, it would have been there from Saturday until Tuesday, when she returned from her days off. Complainant’s supervisor testified that she issued the letter because Complainant was observed dispatching just a few pieces of mail on July 9, 2016. She had spoken to Complainant numerous times about time-wasting practices including getting up to dispatch a few pieces of mail, most recently on June 17, 2016. She explained that Complainant was incorrect in her statement that had she not dispatched the priority mail item that it would have sat around for several days; it would have been dispatched by either the next person sitting there or someone assigned to pick up and dispatch. The manager of the mail forwarding unit testified that Complainant’s supervisor issued the letter and she was the concurring official. The manager indicated it is a waste of time to dispatch one piece of mail and Complainant had previously been told not to do that. The Agency uses some employees in rotation for “allied duties” that include a variety of tasks not associated with keying mail. Complainant testified that, on July 22, 2016, she became aware that she was not included in the rotation for allied duties. In response to an Information Request, Complainant’s supervisor indicated that Complainant was not placed in the rotation because she does not work well with other employees. Complainant disputes this reason, stating she has never been given a chance to perform these duties and alleging that only one of seven employees placed on rotation were female and the employees on rotation are younger. Complainant’s supervisor testified that she responded to the union’s information request and indicated Complainant does not work well with, near, or around other employees, so her request to work allied duties was not granted. Complainant has made inappropriate remarks about her co-workers, creates a dreary work environment, is very argumentative, and does not want to hear what management says to her. She tells management what to do and how to handle employees and becomes upset if management does not report back to her. Complainant has been sent for Fitness-for-Duty exams three times. Another supervisor testified that, while he was not involved in the response to the information request, he agreed that Complainant was not selected to perform allied duties because she does not work well with others. 0120171940 3 Complainant is very antagonistic and has made ludicrous, unfounded statements against other employees. She has followed other employees on their way home or to stores, taking pictures of them. She mocks others’ physical appearance or the way they talk. The manager of the mail forwarding unit testified that allied duties are support work and only two to four employees will work support. In assigning duties, they try to identify the strengths of each clerk. They rotate among a few employees for such allied duties assignments. She does not believe there is a contractual requirement to rotate employees to perform allied duties. 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). In accordance with Complainant’s request, 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. However, Complainant has not submitted a brief or argument in support of her claim. 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 alleged that the Agency treated her disparately. 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). 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). 0120171940 4 Even if we assume Complainant has established a prima facie case with respect to her claims, her claims nevertheless fail, as the record establishes the Agency had legitimate and nondiscriminatory reasons for its actions. With respect to the Letter of Warning, Complainant’s supervisor and management testified that Complainant was issued the letter for failing to follow the instruction regarding not dispatching one piece of mail when she had been instructed multiple times that she should not do this. Complainant acknowledged that she dispatched one piece of mail as charged in the letter, but offered as an explanation that this was priority mail that, had she not dispatched it, would have sat there for several days, until she returned from her days off. Her supervisor explained that had Complainant followed instructions and not dispatched that one piece of mail, someone else would have done it while she was out. Therefore, we find the Agency had a legitimate and nondiscriminatory reason for the issuance of the Letter of Warning, as the record establishes Complainant failed to follow instructions to not dispatch one piece of mail, despite having been told not to do so and Complainant 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. With respect to not being included in the rotation for allied duties, members of the Agency’s management testified as to Complainant’s not being suitable for this assignment, due to her inability to work with others. We note the record includes several statements from Complainant’s co-workers describing Complainant’s behavior in the workplace, generally supporting the assertion that she does not get along well with other employees. Therefore, we find the Agency had a legitimate and nondiscriminatory reason for the not including Complainant in the rotation for allied duties and Complainant 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 final Agency 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. 0120171940 5 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. 0120171940 6 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 November 16, 2018 Date Copy with citationCopy as parenthetical citation