Stella K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jun 20, 2018

0120161820 (E.E.O.C. Jun. 20, 2018)

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

Stella K.,1
Complainant,

v.

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

Appeal No. 0120161820

Agency No. 4E-890-0074-15

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated April 4, 2016, finding no discrimination
concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Complaints and
Inquiry Clerk, PS-06/FF, at King Station, Las Vegas, Nevada. On June 15, 2015, Complainant
contacted an EEO Counselor. On July 20, 2015, Complainant filed her formal complaint, which
was later amended. Therein, Complainant alleged discrimination based on race (African-
American) and in reprisal for prior EEO activity when:

(1) On February 9, 2015, her manager told her there were no acting supervisor positions
available;
(2) On March 22, 2015, she was not selected for the position of supervisor of customer
services;

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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(3) On various dates including April 6 and 29, 2015, the positions she applied for were
canceled;
(4) On April 23, 2015, she was not recommended/not selected for the position of supervisor
of distribution operations;
(5) On May 1, 2015, she was not recommended/not selected for the position of supervisor of
customer services;
(6) On May 15, 2015, she was considered not eligible/not selected for the position of safety
specialist;
(7) On May 26, 2015, she was not selected for the position of supervisor of customer
services;
(8) On June 2, 2015, she was not selected for the position of supervisor of customer services;
(9) On June 3, 2015, she was informed that her account was short $50.00;
(10) On June 9, 2015, she was not recommended/not selected for the position of
supervisor of distribution operations;
(11) On June 10, 2015, there was a dispute about the time spent meeting with the
union steward;
(12) On June 11, 2015, she was deemed not eligible/not selected for the position of
facility requirements specialist;
(13) On June 12, 2015, she became aware a city carrier assistant had been promoted to
supervisor;
(14) On June 15, 2015, her request for her clock rings was denied;
(15) On June 15, 2015, she became aware a letter carrier became an acting supervisor
in her station;
(16) On June 17, 2015, she was not recommended/not selected for the position of retail
specialist; and
(17) On June 17, 2015, her supervisor requested medical documentation after she
decided to leave before the end of her shift.

Complainant alleged discrimination in reprisal for prior EEO activity when:

(18) On March 26, 2015, she received an investigative interview;
(19) On June 3, 2015, her request for a shop steward was delayed;
(20) On June 10, 2015, she applied/not selected for the Complaints and Inquiry Clerk
position;
(21) On June 10, 2015, she became aware that a reference to notice of 7-day
suspension that had been reduced to a letter of warning remained in her file;
(22) On an unspecified date, she entered into a settlement agreement with the National
Labor Relations Board (NLRB); and
(23) On an unspecified date, she was charged 0.81 hours of sick leave she did not
request.

On August 14, 2015, and October 22, 2015, the Agency dismissed claims (1), (2), (4) and (18)
due to untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2); claims (3), (9),
(11), (13), (14), (15), (17), (19), and (22) for failure to state a claim pursuant to 29 C.F.R.
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§ 1614.107(a)(1); and claim (21) for raising the same matter that had already been decided by the
Agency in Agency No. 1E-891-0021-14, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency
accepted claims (5) – (8), (10), (12), (16), (20), and (23),2 and investigated those claims. After
completion of the investigation of the accepted claims, Complainant did not request a hearing
before an EEOC Administrative Judge (AJ). The Agency then issued its final Agency decision
concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

ANALYSIS AND FINDINGS

Claims (1), (2), (4) and (18):

The record indicates that the incidents in claims (1), (2), and (4) occurred on or prior to April 23,
2015. Complainant contacted an EEO Counselor regarding the subject matters on June 15, 2015,
which was beyond the 45-day time limit set by the regulations. The record further indicates that
the incident in claim (18) occurred on March 26, 2015, but Complainant did not contact an EEO
Counselor until July 10, 2015, which was beyond the 45-day time limit set by the regulations.
Complainant does not indicate that she was not aware of the requisite time limit to contact an
EEO Counselor at the relevant time. On appeal, Complainant does not provide any evidence to
warrant an extension of the applicable time limit for contacting an EEO Counselor. Thus, we
find that the Agency properly dismissed claims (1), (2), (4), and (18) due to untimely EEO
Counselor contact. 29 C.F.R. § 1614.107(a)(2).

Claims (3), (9), (11), (13) - (15), (17), (19), (21), and (22):

Upon review, we find that the Agency properly dismissed claims (3), (9), (11), (13) - (15), (17),
(19), and (22) for failure to state a claim and claim (21) for stating the same claim that had
previously been decided by the Agency or the Commission pursuant to 29 C.F.R.
§ 1614.107(a)(1).3

Specifically, regarding claim (3), Complainant indicated that during the relevant time, i.e.,
between April 6 through 29, 2015, she applied for the Supervisory, Customer Services, EAS-17,
at the James C. Brown Facility, Las Vegas, Nevada, on April 18, 2015, but it was cancelled. The
position was reposted on June 2, 2015, and she applied on June 16, 2015. Complainant does not
indicate she was harmed by the cancelation. We note that Complainant noted that she later

2 Therein, the Agency also indicated that Complainant’s claim concerning official time would
be referred to the Agency official responsible for the quality of complaints processing. The
record reflects that the issue was investigated and addressed by the Agency. Complainant does
not dispute this on appeal and does not argue on appeal that she was denied official time.
3 We note that although the Agency also dismissed claim (3) due to untimely EEO Counselor
contact pursuant to 29 C.F.R. § 1614.107(a)(2), since its dismissal is affirmed for failure to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), we need not discuss the alternative
grounds for dimsissal in this decision.
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withdrew her June 16, 2015 application and then reapplied again on June 20, 2015. Based on the
foregoing, we find that Complainant was not aggrieved by the Agency’s action.

Regarding claim (9), Complainant indicated that she was told by an identified T-7 employee that
your account was short $50.00. She also indicated that she immediately asked for the Demand
Letter for the missing money to her supervisor (S1). Complainant acknowledged that she was
not issued the Demand Letter. There is no evidence that Complainant was subjected to any
adverse action or a disciplinary action as a result of the purported incident.

Regarding claim (11), Complainant indicated that at the relevant time, she had a meeting with
her steward for 1.25 hours right before her lunch break and when she came back from her lunch,
S1 asked her why the meeting took so long. There is no evidence that Complainant was denied
her union time or she was subjected to any adverse action as a result of the incident.

Regarding claims (13) and (15), the incidents concerned two identified employees’ promotion.
Complainant does not indicate that she applied for the subject positions and was denied the
promotions.

Regarding claim (14), Complainant indicated that at the relevant time, she asked her supervisor
(S2) to see her clock rings. S2 then asked her why she wanted to see them. Complainant did not
provide the reason for her request. A few days later, Complainant again asked for her clock
rings. S2 told Complainant that since it was more than 50 pages, Complainant needed to confer
with her union steward because she would need to pay for the print cost. There is no evidence
Complainant proceeded with the printing of her clock rings.

Regarding claim (17), Complainant indicated that on June 15, 2015, on the same date she asked
for her clock rings, described in claim (14), she felt sick and told S2 that she was going home.
S2 and her manager (M1) then asked her to submit medical documentation when she comes
back. Complainant acknowledged that on June 17, 2015, M1 asked how she was feeling and she
submitted to S2 and M1 her statement wherein she explained her not feeling well on June 15,
2015, and asking to use her accrued sick leave for the hours she missed at work for that incident.
M1 accepted the statement. There is no evidence that she was denied the requested sick leave or
subjected to any adverse action.

Regarding claim (19), Complainant indicated that her request for a steward was delayed on June
3, 2015, and she filed the grievance on June 10, 2015. S1 claimed S1 did not see her note
requesting a steward. Complainant claimed that management offered to pay $20 to settle the
grievance but she refused to settle for less than $40. On July 7, 2015, her grievance was settled
with management agreeing to pay her $40. It appears that the subject matter constitutes a
collateral attack on a grievance proceeding.

Regarding claim (21), the Agency indicated that Complainant raised the same claim, i.e., the 7-
day suspension which was reduced to a letter of warning, in her prior EEO complaint, Agency
No. 1E-891-0021-14, which had previously been decided by the Agency. On appeal,
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Complainant appears to indicate that she was unaware the prior EEO complaint had been
previously decided. Our records indicate that on August 24, 2014, Complainant filed the prior
complaint, cited herein, alleging 19 incidents occurring from May 2014, to September 2014,
including the 7-day suspension at issue. On March 26, 2015, the Agency issued its final decision
finding no discrimination concerning the prior complaint. Upon Complainant’s appeal, the
Commission in EEOC Appeal No. 0120151675 (November 9, 2017) affirmed the Agency’s final
decision. Based on the foregoing, we find that the Agency properly dismissed claim (21) for
stating the same claim that had already been decided by the Agency or the Commission. 29
C.F.R. § 1614.107(a)(1).

Regarding claim (22), Complainant claimed that she entered into a settlement agreement with the
NLRB. The Agency stated and we agree that the subject matter constitutes a collateral attack on
a non-EEO complaint proceeding.

Claims (5) – (8), (10), (12), (16), (20), and (23):

Turning to the accepted claims, 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 (EEO MD-110), 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. In claim (5), Complainant indicated that on May 1, 2015, she
was not recommended/not selected for the position of Supervisor of Customer Services, EAS-17,
at Emerald Station, Las Vegas, Nevada, Vacancy Announcement Number (VA No.) 85183878,
via eCareer online. At the relevant time, stated Complainant, she worked as a Complaints and
Inquiry Clerk, PS-06, at King Station, Las Vegas, Nevada. Complainant indicated that she did
not know who was recommend/selected for the position at issue.

An Agency Review Committee Member (M2) for the position at issue indicated that:
Complainant submitted her KSAs (Knowledge, Skills, and Abilities) that received a zero rating;
her application was not considered eligible; thus, she was not further considered for the position.
The Agency’s Requirement-By-Applicant Matrix reflects that Complainant received a raw score
of zero for her KSAs. The Selectee received a score of 12 for his KSAs.

In claim (6), Complainant indicated that on May 15, 2015, she was considered not eligible/not
selected for the position of Safety Specialist, EAS-17, Nevada-Sierra District, Las Vegas,
Nevada, VA No. 86487042, via eCareer online. Complainant admitted that she did not meet the
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criteria, qualifications, and requirements for the position because only non-bargaining (EAS)
postal employees were eligible to apply for the position. The Agency Human Resources
indicated that Complainant’s application did not show that she met the eligibility or suitability
requirements for the vacancy announcement at issue; thus, she was not further considered for the
position. Complainant admitted that she did not know if her race was a factor for the
nonselection. Complainant stated that she believed that her excessive discipline she was issued
in reprisal for her prior EEO activity which was placed in her file was a factor. We note that the
subject discipline is not at issue. Complainant indicated that she did not know who was a
selecting official or who was considered/selected for the position.

In claim (7), Complainant indicated that on May 26, 2015, she was not selected for the position
of Supervisor of Customer Services, EAS-17, VA No. 85183881, Westridge Station, Las Vegas,
Nevada, via eCareer online. A Selecting Official (SO1) for the position indicated that after a
review of the applications, Complainant was not selected for the position. The Agency’s
Requirement-By-Applicant Matrix reflects that Complainant received the score of 43, ranked 5th
out of 8 applicants. SO1 selected a selectee, who was a Supervisor, Customer Service, EAS-17.
Complainant admitted that “I do not believe my race was a factor in this claim; I believe [SO1]
was not yet comfortable promoting me at that time” and that “I do not believe my prior EEO
activity was a factor in this claim.” Complainant also indicated that she did not know who was
selected for the position.

In claim (8), Complainant indicated that on June 2, 2015, she was not selected for the position of
Supervisor of Customer Services, EAS-17, Crossroads Station, Las Vegas, Nevada, VA No.
84593846, via eCareer online. SO1 indicated that 10 applicants, including Complainant, applied
for the position. The record indicates that SO1 selected a selectee, who was a City Carrier, Q-01,
from Crossroads Station. Complainant admitted, as she described in claim (7) above, that she
did not believe her race or her prior EEO activity was a factor in the subject claim and SO1 was
not yet comfortable selecting her for the position. Complainant stated that she did not know who
was selected for the position.

In claim (10), Complainant indicated that on June 9, 2015, she was not recommended/not
selected for the position of Supervisor of Distribution Operations, VA No. 85068081, via
eCareer online. SO2 stated that Complainant was not selected because her application submitted
to eCareer received a zero ranking because her application did not address all of the KSAs; thus,
she was not eligible to proceed to the interview process and was not considered for the position.
Complainant admitted that she did not believe her race or her prior EEO activity was a factor in
the subject claim. Complainant stated that she did not know who were recommended/selected
for the position.

In claim (12), Complainant indicated that on June 11, 2015, she was deemed not eligible/not
selected for the position of Facility Requirements Specialist, EAS-21, VA No. 87057278, via
eCareer online. Complainant acknowledged that she was deemed ineligible because she was not
already an EAS employee. The selectee was an EAS employee. Complainant admitted that she
did not believe her race was a factor in the subject claim. Complainant indicated that her
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excessive discipline she was issued in reprisal for prior EEO activity which was placed in her file
was a factor. We note that the subject discipline against Complainant is not at issue.
Complainant did not identify a selecting official and stated that she did not know who were
recommended/selected for the position.

In claim (16), Complainant indicated that on June 17, 2015, she was not recommended/not
selected for the position of Retail Specialist, EAS-16, VA No. 86966196, via eCareer online.
SO3 indicated that she accepted/selected a noncompetitive downgrade employee, who was a
Retail Manager, EAS-17, for the position at issue. Complainant admitted that she did not believe
her race was a factor in the subject claim. Complainant indicated that her excessive discipline
she was issued in reprisal for prior EEO activity which was placed in her file was a factor. We
note that the subject discipline against Complainant is not at issue. Complainant stated that she
did not know who the selecting official was and who was recommended/selected for the position.

Regarding claim (20), Complainant clarified that she never claimed that she was not selected for
the Complaints and Inquiry Clerk, PS-07 position at issue. Complainant admitted that on July
10, 2015, SO4, M2 in claim (5) above, called her and told her she was selected for the PS-07
position at issue.

In claim (23), Complainant indicated that on an unspecified date, she was charged 0.81 hours of
sick leave she did not request. Specifically, Complainant stated that on May 18, 2015, she did
not request any leave and she was attending scheme training/testing on the clock that day.
Complainant acknowledged that management informed her that 0.81 hours of sick leave was a
simple error and S2 made the pay adjustment on June 10, 2015. Complainant indicates on appeal
that although she was paid for the hours in dispute, the record of usage remained in her employee
file on her Key Indicator Report. We find that Complainant fails to show how she was harmed
as a result of this record or how the error was in any way motivated by discrimination. Based on
the foregoing, we find that management’s mistake about Complainant’s sick leave charge was
not based on discrimination as alleged.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Regarding her claim of harassment,
we find that Complainant failed to establish that any Agency action was related to any protected
basis of discrimination. After a review of the record, we find that Complainant failed to show
that there were any similarly situated employees not in her protected groups who were treated
differently under similar circumstances. Furthermore, Complainant failed to show that her
qualifications for the positions at issue were plainly superior to the selectees’ qualifications. See
Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on
the foregoing, we find that Complainant has failed to show that the Agency’s actions were
motivated by discrimination.

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CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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. 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
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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

June 20, 2018
Date