Zoila G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 17, 2016

0120142735 (E.E.O.C. Feb. 17, 2016)

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

Zoila G.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142735

Hearing No. 450-2012-00229X

Agency No. 1G-761-0013-12

DECISION

On July 18, 2014, Complainant filed an appeal from the Agency’s June 6, 2013 final order
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Clerk at the
Agency’s work facility in Fort Worth, Texas.

On January 4, 2012, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of color (black) and in reprisal for her prior
protected EEO activity under Title VII when she was issued a Notice of Removal effective
December 16, 2011.

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

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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Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
When Complainant did not object, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on May 21, 2013.

The AJ found that no discrimination occurred. The AJ stated that on September 15, 2011,
Complainant was involved in an altercation with a coworker. The incident began when the
coworker inadvertently pushed Complainant in the break room and Complainant responded by
hitting the coworker. Several witnesses to the incident stated that Complainant and the
coworker were yelling, swearing, and hitting each other. The fight was broken up and both
employees were placed off the clock by a Supervisor. The Agency’s investigation of the
incident noted that the coworker was willing to take a polygraph examination and had pictures
of her injuries. Complainant was unwilling to undergo a polygraph examination. During a
fact-finding interview with the Supervisor and a union representative, Complainant asserted
that she did not remember hitting her coworker. The Supervisor subsequently issued a Notice
of Removal to both Complainant and the coworker. Complainant’s Notice of Removal was
approved by the Manager, Distribution Operations. The AJ noted that both the Supervisor and
the Manager, Distribution Operations denied being aware of Complainant’s prior EEO activity.

The AJ stated that both Complainant and the coworker filed grievances concerning their
removals. Through the grievance process, the coworker’s removal was reduced to a seven-day
suspension. Complainant’s grievance was denied by an arbitrator.

The AJ stated that Complainant claimed that she was discriminated against on the basis of her
color because she is darker skinned than both the coworker and the Supervisor. The AJ noted
that Complainant’s prior EEO activity did not involve the managers responsible for her
removal. The AJ found that even assuming Complainant established a prima facie case under
the alleged bases, the Agency articulated nondiscriminatory reasons for Complainant’s
removal. The AJ observed that the investigative memorandum reported that Complainant and
the coworker were involved in a physical altercation and that the Supervisor issued both
employees Notices of Removal.

The AJ stated that Complainant claimed that she was treated differently from her coworker
given that the coworker retained her job as a result of her union grievance and Complainant
did not. The AJ noted that Complainant also contended that the different grievance results
were due to her not being a union member, and that she was perceived as mean and others did
not like her. The AJ, however, observed that both Complainant and her coworker were treated
the same with respect to the Notices of Removal. The AJ stated that differences in treatment
resulting from resolution by third parties do not constitute discrimination on the part of the
Agency. The AJ found that Complainant failed to establish that the Agency’s stated reasons
for the Notice of Removal issued to her were pretext.

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.

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CONTENTIONS ON APPEAL

On appeal, Complainant states that she did not receive a copy of the AJ’s Decision and she did
not learn about the Agency’s final order until June 2014, when she was informed of it by an
Agency EEO official. Complainant contends that many people were treated differently than
her. Complainant maintains that all of the males and a white supervisor who committed an
offense violating the zero tolerance policy received their jobs back. Complainant claims that
her coworker lied during the arbitration hearing. Complainant argues that she and her
coworker were both hitting each other and that they should not have been treated differently
under the zero tolerance policy.

In response, the Agency asserts that Complainant’s appeal is untimely by over a year. The
Agency states that Complainant has provided no reason for the delay. With regard to the
merits of the complaint, the Agency asserts that none of the thirteen comparisons cited by
Complainant had both the same position and supervisor as Complainant. The Agency asserts
that Complainant has presented no evidence that she was removed due to her prior EEO
activity. The Agency asserts that Complainant was treated the same as her coworker in the
aftermath of the altercation. The Agency points out that both employees were disciplined in
accordance with the investigation and guidelines listed in the Employee and Labor Relations
Manual and the zero tolerance policy.

ANALYSIS AND FINDINGS

Initially, we shall address the issue of whether the instant appeal was filed in a timely manner.
The Agency issued its final order on June 6, 2013. Complainant did not file the instant appeal
until July 18, 2014, long after the expiration of the thirty-day filing period. However,
Complainant maintains that she did not receive a copy of the final order and did not learn of
the final order until an Agency EEO official informed her in June 2014 of the final order. The
Agency has not provided evidence to establish that Complainant received the final order at an
earlier point than that asserted by Complainant. Therefore, we find that the instant appeal was
filed in a timely manner.

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Disparate Treatment/Reprisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
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that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that she established a prima facie case of discrimination and reprisal, Complainant failed to
present evidence to rebut the Agency's legitimate, non-discriminatory reasons for its actions.
Specifically, the Agency stated that Complainant was issued a Notice of Removal based on her
involvement in a physical altercation with a coworker. The Agency stated that Complainant’s
actions constituted a violation of its zero tolerance policy. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its issuance of a Notice of Removal to Complainant.

Complainant argues that other employees violated the zero tolerance policy and did not lose
their jobs. However, none of the comparisons named by Complainant had both the same
supervisor and held the same position. The Agency points out that the coworker in the
altercation with Complainant was also issued a Notice of Removal. Although it is true that the
coworker received her job back and Complainant did not, that difference in treatment reflected
the outcome of the grievance process. To the extent that Complainant is challenging the fact
that she was less successful than her coworker through the grievance process, we note that an
employee cannot use the EEO complaint process to lodge a collateral attack on another
proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September
22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25,
1993).

CONCLUSION

The Agency’s determination that no discrimination occurred 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:
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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.

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
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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 17, 2016
Date