Wilda M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionSep 1, 20160120142995 (E.E.O.C. Sep. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilda M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142995 Agency No. 6X-000-0028-13 DECISION Complainant filed an appeal from the Agency’s July 24, 2014, final decision 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. The Commission deems the appeal timely and accepts it for de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as an EEO Compliance and Appeals Specialist at the Agency’s Headquarters facility in Washington, DC. On September 25, 2013, Complainant filed an EEO complaint alleging that various Agency officials2 discriminated against her on the bases of race 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 identified the EEO Program Manager (Official 1), the EEO Compliance and Appeals Manager for Region 2 (Official 2); the EEO Compliance and Appeals Manager (Official 3); the Director of Learning and Development a Senior Systems Accountant (Official 4); and a Senior Systems Accountant (Official 5) as the responsible management officials. Official 3 was the immediate supervisor of Official 1. Investigative Report at 89, 101, 110, 118, 125, 127. 0120142995 2 (African-American), color (Brown), and in reprisal for prior protected EEO by constructively discharging her on June 29, 2013, and by issuing her a notice of indebtedness in the amount of $5,490.00 on July 24, 2013.3 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) 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. Complainant completed the Agency’s Managerial Leadership Training program in March of 2013 and was eligible to be placed in management positions at the EAS level 23 throughout the United States. IR 131. According to Official 1, Complainant made it known since December 2012, that she wanted to relocate to Chicago for personal financial reasons. IR 92. Complainant averred that Official 1 and Official 3 forced her to resign on June 29, 2013, by not affording her the opportunity to return to Chicago while still remaining in her field of expertise at the grade level she had reached. IR 58. She maintained that had her request for a lateral transfer to Chicago been granted, she would not have been forced to look for a job outside of the Agency. IR 58-60, 62. Both Official 1 and Official 3 averred that they were not involved in the decision to post vacancies, that it was Official 2 who made the decisions as to where vacancies should be posted, and that on June 25, 2013, he received approval to post vacancies in the Great Lakes area and in Dallas, Texas. IR 91-92, 128-29. Official 2 confirmed that he did indeed decide to post a vacancy in Dallas, and averred that he did so in order that a new manager such as Complainant would have the benefit of working in close proximity with more seasoned manager. He also averred that he did not feel comfortable having a new manager that was not domiciled near him. IR 104. S1 averred that Complainant informed her that she had applied for a position at the Small Business Administration in order to attain a promotion, and that she never mentioned that she had been forced to resign. IR 93. 3 In her formal complaint, Complainant identified the following incidents as comprising her claims: (1) on June 26, 2013, the Agency denied her a lateral transfer to the Great Lakes area; (2) on June 29, 2013, the Agency forced her resignation; (3) on July 24, 2013, the Agency issued her a debt letter for $5,490.00; (4) on July 31, 2013, the Agency denied her an affordable repayment plan; and (5) on August 16, 2013, the Agency placed her in an involuntary, unaffordable repayment plan. IR 26. In its letter of acceptance, the Agency formally accepted incidents (2) and (3) and identified the remaining incidents as evidence pertinent to the accepted allegations. IR 49. On appeal, Complainant contends that the Agency rejected incidents (1), (4), and (5) without treating its decision as a partial acceptance, thereby fragmenting her complaint and denying her the opportunity to contest the acceptance. See Appeal Statement, p. 2. However, we find that all five incidents were addressed in the report of investigation, with incidents (1), (4), and (5) being treated as evidence of accepted incidents (2) and (3), and consequently, that no fragmentation had occurred. See Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614, at Chapter 5, § III.A. (Aug. 5, 2015) (defining fragmentation as the breaking up of a legal claim during EEO complaint processing). 0120142995 3 Official 2 averred that Complainant never formally requested a transfer to Chicago and denied that he ever turned down such a request from Complainant. IR 104-06. Complainant maintained that Official 4 and Official 5 discriminated against her by refusing to grant her a waiver of her indebtedness and putting her on a debt repayment plan that she could not afford. IR 71-72. An invoice addressed to Complainant in the amount due of $5,490.00 dated July 24, 2013, states that “per continued service agreement, employee resigned prior to meeting one year commitment for full reimbursement of Managerial Leadership Program costs.” IR 146. A training agreement for the Managerial Leadership Program signed by Complainant indicates that Complainant completed the program in March of 2013, that she was obligated to remain with the Agency for a full year following completion of the program, that if she voluntarily terminated her employment with the Agency for any reason before completing her one-year obligatory period of service, she would agree to reimburse the Agency for the total cost of the training, and that if the Agency could not collect the entire amount due from her forthcoming paychecks, Complainant would be invoiced for the outstanding debt. IR 147-49. A PS-Form 1902 entitled, “Justification for Billing Accounts Receivable,” in the amount of $5,490.00 was prepared and signed by Official 4 with the notation, “customer service agreement signed and attached *** full reimbursement of costs due to voluntary resignation from the Agency prior to completion of one-year continued service agreement commitment.” IR 112-13, 145. Official 1 and Official 2 both averred that when Complainant informed them that she would be leaving the Agency, they reminded her that she would have to pay back the cost of her training. IR 95, 120, 132. Complainant was put on a repayment plan in which she had to pay $330 per month until the debt was paid off. IR 153. Official 5 averred that any repayment amount of less than $330 per month would have carried the debt longer than the training program’s guidelines allow. IR 121. 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 EEO Management Directive 110 , at Chapt. 9, § VI.A. (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”). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail, Complainant would have to show, by a preponderance of the evidence, that at least one of the named officials were motivated by unlawful 0120142995 4 considerations of her race, color, or previous EEO activity when they took the actions described in her complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). As to her constructive discharge claim, Complainant would have to show that because of her race, color, or previous EEO activity, the officials created working conditions for Complainant that were so difficult, unpleasant, or intolerable that a reasonable person in Complainant’s position would have felt compelled to resign. Ileana R. v. Department of Homeland Security, EEOC Appeal No. 0120120394 (November 24, 2015). Here, none of the elements necessary to support a constructive discharge is present. Although Complainant averred that she openly expressed to Official 1 and Official 2 her belief that their decision not to allow her to relocate to Chicago was racially motivated, both officials denied that such a conversation ever taken place. IR 59, 65, 74-75, 90, 103. Complainant has not presented any sworn statements from other witnesses or documents that contradict the explanations provided by Official 1 or Official 2, or which call their veracity into question. Moreover, when asked by the investigator why she believed that she was being forced to resign, Complainant responded that being denied the opportunity to laterally relocate to Chicago constituted the constructive discharge. IR 65. However, there is no evidence that Complainant was subjected to intolerable working conditions imposed upon her by Official 1, Official 2, or Official 3. The record establishes that Complainant applied to the Small Business Administration because she wanted a promotion. We therefore find that Complainant has not proven that she had been constructively discharged in violation of Title VII. Regarding the notice of indebtedness, Complainant can make her case by presenting evidence tending to show that the reasons articulated by Official 4 and Official 5 in support of their actions involving the issuance of the notice were pretext, i.e., not the real reason but rather a cover for discrimination and reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. denied EEOC Request No. 0520080211 (May 30, 2008). Here again, Complainant maintains, in general terms, that Official 4 and Official 5 discriminated and retaliated against her by issuing the notice of indebtedness and invoicing her for that debt in the amount of $330.00 per month. IR 71-72, 74-25. However, the affidavits of Official 4 and Official 5 have been corroborated by extensive documentation of the transaction, including the training contract that Complainant signed, the PS-Form 1902, and the invoice itself. Complainant failed to present any evidence that causes one to question the veracity of these witnesses or the accuracy of their statements. We therefore agree with the Agency that Complainant did not establish the existence of an unlawful motive on the part of Official 4 or Official 5 for requiring her to reimburse the Agency for the debt she incurred as a result of her premature departure. 0120142995 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests 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 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. 0120142995 6 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 September 1, 2016 Date Copy with citationCopy as parenthetical citation