0120170428
07-17-2018
Tona C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tona C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170428
Hearing No. 530-2013-00095X
Agency No. 4C-0800-1131-2
DECISION
On November 17, 2016, 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 October 27, 2016, final order 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether Complainant was discriminated against based on sex (female), age (DOB: 11/21/1962) and reprisal (prior EEO activity) when her request for a special inspection was denied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Toms River Post Office facility in Toms River, New Jersey. On August 2, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (56), and reprisal (prior EEO activity) when her supervisor denied her request for a special route inspection.
The Toms River Post Office implemented a "Flat Sorting System" (FSS). FSS is an automated mail processing system that eliminates manual labor and reduces carriers' office time. The implementation of this system eliminated seventeen (17) to twenty (20) mail routes, enabling the facility to consolidate and realign the remaining routes and zones it covered. Neither the union or local management were involved in the restructuring.
The restructuring resulted in more mail volume and longer time on the street for the carriers. The carriers bided on the new adjusted routes. Complainant bided on and received her choice of assignment. Complainant serviced route 87 in 2011 and 2012. She found the route overburdening, causing her to repeatedly request overtime (Form 3996). She requested two (2) route inspections.2 To obtain a change in route, the Agency reviews the carrier's performance and assesses the need, if any, for adjustments. After management review, Complainant was advised that the Agency would not grant a route inspection, as there were deficiencies found in Complainant's performance. The Postmaster, S1, determined that the Complainant did not qualify for an inspection because she did not meet the requirements for the inspection, and she was not meeting her office percentage standards.
On March 6, 2012, Complainant was subjected to a Pre-Disciplinary interview for using thirty-nine (39) minutes of unauthorized overtime. On March 12, 2012, she was issued a Letter of Warning (LOW) based on the unauthorized use of overtime. Complainant submitted a written response objecting. She stated that she was having difficulty completing her route within the eight (8) hours provided, that she had asked for a route inspection, and had sought management's input and suggestions.
In May 2012, after the District Office team returned to reassess the adjusted routes, Complainant was issued a route adjustment which eliminated 20 minutes from her office time and added 20 minutes to her street time. During this period, the District Office also made territorial route cuts to seven (7) male carriers' routes. The adjustments to Complainant's route and the other male carriers' routes were recommended by the District office team, but implemented by management.
Evidence of record also shows that Carriers M1 and M2 (males), had previously requested adjustments in 2012. However, there is no evidence of record to determine if their requests were granted when they were first made, if they were similarly situated to Complainant, or if they received discipline for performance. On or about May 12, 2012, Complainant "bid off" her walking route and successfully bid into a driving route.
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). Complainant timely requested a hearing and the AJ held a hearing on January 11, 2016,3 and issued a decision on October 27, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant does not raise any new contentions. Her submission on appeal addresses her view of how she was treated and her dissatisfaction with the Agency. She also maintained that she, contrary to the AJ's determination otherwise, did establish a prima facie case of reprisal discrimination.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Disparate Treatment
Claims of disparate treatment based on indirect evidence are examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Even if were we to assume that Complainant established prima facie cases of discrimination based on age, sex and reprisal, we find that there is substantial evidence in the record to support the AJ's determination that the Agency articulated legitimate, non-discriminatory reasons for its actions, and that Complainant did not establish pretext. The Agency applied the same process to all carriers. Route adjustments were implemented once the Agency assessed the progress of the new system. Complainant and others received adjustments once the new system had been in operation for a sufficient period to determine if adjustments were needed. Complainant failed to show how she was treated differently.
Upon careful review of the record, we find there is substantial evidence to support the AJ's findings that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
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 order adopting the AJ's 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. 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
_7/17/18_________________
Date
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 A Route Inspection is a two (2) part route review where (1) management counts every piece of the Carrier's mail and calculates the amount of time it should take for the Carrier to case the mail while in the facility; and (2) management observes the Carrier while on the street to evaluate any work deficiencies.
3 Prior to the hearing, the AJ granted partial summary judgment upon finding that there were no genuine issues of material fact in dispute regarding Complainant's allegations that she was discriminated against because of her sex, age or reprisal when: (1) she was denied extra time on her form 3996 and questioned about her time; and (2) she was issued a pre-disciplinary interview and subsequent Letter of Warning for the use of unauthorized overtime. These findings are not in dispute in this decision and therefore will not be addressed further.
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