Violet F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 16, 20180120172378 (E.E.O.C. Oct. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Violet F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120172378 Agency No. 4F-945-0094-15 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 4, 2016 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Sales and Services Distribution Clerk, GS-6 at the Agency’s Elmwood Station in Berkeley, California. On November 24, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color,2 age (49), and reprisal for prior protected EEO activity when: 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 Complainant states in her affidavit responses that she is “light skinned black.” 0120172378 2 2. on or around August 27, 2015, Complainant was not paid for Higher Level work; 3. on or around November 12, 2015, Complainant was not given the opportunity to bid on the same positions as her-worker; 4. on March 10, 2016, Complainant was not given the opportunity to be placed in a bid of her choice;3 5. on dates which were unspecified, Complainant was charged Absent Without Leave (AWOL); and 6. on dates which were unspecified, Complainant was charged Annual Leave instead of requested Sick Leave. 4 After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On April 4, 2016, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b). As a preliminary matter, the Agency first affirmed its December 28, 2015 and March 23, 2016 decisions dismissing three other claims raised in the original complaint (claims 1, 7, and 8) and determined, in the instant final decision, that these claims were properly dismissed pursuant to 29 C.F.R. § 1614.107. The Agency then dismissed claim 2 and claim 6 pursuant to 29 C.F.R. § 1614.107(a)(5), finding that these claims were moot. The Agency also dismissed claim 5 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). For the sake of argument, however, the Agency discussed all investigated claims on the merits (claims 2 – 6), finding no discrimination. 3 Complainant clarifies in her affidavit response that she was awarded her bid position on November 18, 2015, but as of March 10, 2016, management had not placed her in the bid position and continued to move her “around from place to place when employees call in sick or go on vacation.” 4 Complainant originally raised a total of eight claims. The Agency previously dismissed claims 1, 7, and 8 on procedural grounds. As Complainant does not expressly address the Agency’s separate dismissal of these claims, we will not further address them in this decision. 0120172378 3 The instant appeal followed. On appeal, Complainant does not provide any briefs or arguments to support of her appeal. ANALYSIS AND FINDINGS Disparate Treatment: 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, she must first establish a prima facie 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 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. See Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). 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. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claim 2 Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant’s former Supervisor (“S1”) (Filipino/Asian, brown, DOB June 2, 1974) stated, regarding claim 2, that Complainant “ha[d] been paid for every event that she worked at a higher level.” The record contains a copy of a grievance settlement dated, dated October 10, 2015, indicating that the Agency agreed to pay Complainant Higher Level pay. Claim 3 Regarding claim 3, S1 stated that Complainant was given the same opportunity to bid on the same positions as her coworkers. 0120172378 4 S1 explained that under the Agency’s collective bargaining agreement, Complainant had the first opportunity to bid on position vacancies because she was already a regular employee, and the two coworkers Complainant references for comparison had just been converted to full-time status employee. S1 further explained that Complainant’s race, color, age, and prior EEO activity were not factors in Complainant’s bid vacancy position assignment. The record contains documentation of bid vacancy options for Complainant and two other coworkers. This documentation indicates that Complainant could select from a total of eight bid vacancy positions, three of which (Position Numbers: 70240984, 70968817, and 70963900) were the same bid positions provided to the other two coworkers. The record also contains documentation indicating that Complainant had full-time employee status as of November 10, 2015 and the other two coworkers were converted to full-time employee status effective November 28, 2015. The record further indicates that Complainant and the two other coworkers each selected a different bid position vacancy. The record also contains copies of the Agency’s collective bargaining agreement and joint contract interpretation manual explaining, in relevant part, that full-time employees have seniority, for the purposes of position assignments, over employees who do not have full-time employee status. Claim 4 Regarding claim 4, S1 explained that Complainant was not the only employee whom management did not immediately place in an awarded bid vacancy position. S1 stated that another coworker, who was awarded a bid position in November 2015, “was sent to offices where he was needed the most” and “there was a period of time when [this coworker] was being moved from office to office because there was a need for it.” S1 explained that the coworker did not have a “specific station” and his work location “depended on where he was needed the most.” Thus, S1 explained that Complainant was not being treated differently when she was not immediately placed in her awarded bid vacancy position. Claim 5 Regarding claim 5, Customer Service Supervisor (African American, brown, DOB: January 20, 1962) stated that he was not involved in this claim. We note that Complainant clarified in her affidavit responses that she was claiming that she was charged Leave Without Pay (LWOP) instead of AWOL on February 17, 2016. The record contains copies of Complainant’s Time and Attendance Collection System (“TACS”) report indicating that management did not charge Complainant with LWOP on February 17, 2016. 0120172378 5 Claim 6 Regarding claim 6, the Acting Manager (white; DOB: February 20, 1962) stated that she completed a PS Form 2240 to correct Complainant’s leave after Complainant notified her of the error. The record also contains a copy of a grievance settlement agreement, dated March 8, 2016, indicating that Complainant’s leave was to be adjusted to reflect Sick Leave instead of Annual Leave. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on her race, color, age, and reprisal for prior protected EEO activity. Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 0120172378 6 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 October 16, 2018 Date Copy with citationCopy as parenthetical citation