Vickey S., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120140995 (E.E.O.C. Feb. 25, 2016)

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

Vickey S.,
Complainant,

v.

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

Appeal No. 0120140995

Hearing No. 410-2013-00155X

Agency No. 4K-300-0183-12

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated December 11,
2013, 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

In her complaint, dated September 1, 2012, Complainant alleged discrimination based on
race/color (African American/black) when on May 2, 2012, she was terminated from the Postal
Service.2 After completion of the investigation of the complaint, Complainant requested a
hearing but later withdrew the request. The Agency then issued its final Agency decision
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 It is noted that although Complainant alleged discrimination also based on sex (female), she
later withdrew this basis.

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concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

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 (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 established a prima facie case
of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for
the termination. The record indicates that Complainant began working at the Agency in
September 2011, and during the relevant time period at issue, she was employed as a 90-day
probationary Postal Support Employee (PSE) Clerk at the Agency’s Woodstock Post Office in
Woodstock, Georgia. Complainant’s morning supervisor (S1) indicated that he terminated
Complainant on May 2, 2012, during her probationary period due to her unsatisfactory
performance and unscheduled absences on many occasions. Specifically, S1 stated that
Complainant was late to work on April 13, 23, 25, and 27, 2012. Complainant’s afternoon
supervisor (S2) also indicated that on April 13, 2012, S2 had to refund money for Complainant’s
failure to dispatch Express Mail; on April 19, 2012, S2 had to catch the truck driver to give him
the Express Mail not dispatched by Complainant; on April 20, 2012, Complainant failed to
dispatch “Return to Sender;” and on April 26, 2012, S2 discussed with Complainant her failure
to put “Forward” mail on the truck.

Complainant claimed that she was not given evaluations prior to her termination. However, S1
and S2 indicated that they gave Complainant her verbal evaluation on April 7, and May 1, 2012,
including the discussions, described above, concerning her poor performance and her attendance
issues, described above. Complainant also claimed that her initials were forged on her May 2,
2012 evaluation, which was issued at the same time of the termination. S1 acknowledged his
mistake putting his initials for Complainant in “employee’s initials” box on the subject
evaluation wherein which S1 noted such mistake thereon. Based on the foregoing, we do not
find that S1’s action was based on discrimination other than his mere mistake.

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. Furthermore, we find that
Complainant failed to show that she was treated less favorably than a similarly situated employee
under similar circumstances. Based on the foregoing, we find that Complainant failed to show
that the Agency’s action was motivated by discrimination as she alleged.

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CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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.

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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

February 25, 2016
Date