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

Equal Employment Opportunity Commission

Feb 11, 2016

0120143061 (E.E.O.C. Feb. 11, 2016)

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

Zoila P.,1
Complainant,

v.

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

Appeal No. 0120143061

Agency No. 4C-450-0047-14

DECISION

Complainant filed an appeal from the Agency’s August 5, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a City Carrier at the Northwest Annex facility in Columbus, Ohio. On
March 5, 2014, she filed an EEO complaint in which she alleged that the Customer Services
Manager, her second-line supervisor (S2) retaliated against her for previous EEO activity by
suspending her for 14 days beginning December 31, 2013, and by issuing her a notice of
termination on February 3, 2014. Investigative Report (IR 41). S2 and Complainant’s
immediate supervisor (S1) both testified in their affidavits that S1 had issued both actions, that
S2 was the concurring official, and that as a result of a successful grievance, the 14-day
suspension had been reduced to 7 days and the removal had been reduced to a letter of
warning. IR 109-10, 113-14, 123, 126, 141-43, 154-59, 167.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge. On

1This 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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July 5, 2014, Complainant requested a final decision on the merits of the complaint. In
accordance with Complainant’s request, the Agency issued its 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.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving discipline or
termination unless there is evidence of a discriminatory motivation on the part of the officials
responsible for those decisions. See Texas Department of Community. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to prevail on her reprisal claim, Complainant would
have to prove, by a preponderance of the evidence, that S2 was motivated by unlawful
considerations of her previous EEO activity in connection with the decisions to issue her the
14-day suspension and later to terminate her employment. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can prove the existence of an
unlawful motivation by presenting documents or sworn testimony showing that the reasons
articulated by S2 for suspending and terminating her are pretextual, i.e., not the real reason but
rather a cover for reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993)
citing Burdine, 450 U.S. at 253. Evidence of pretext can take the form of discriminatory
statements or past personal treatment attributable to S2, unequal application of Agency policy,
deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal
Service, EEOC Appeal No. 0120141697 (November 12, 2015). In this case, Complainant did
not provide evidence of any of the indicators of pretext described above. She has not
submitted any sworn statements from other witnesses or documents that contradict the
explanations provided by S1 or S2, or which call their veracity into question. We therefore
agree with the Agency that Complainant failed to establish the existence of an unlawful motive
on the part of S2 with respect to either of the disciplinary actions taken against her.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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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 11, 2016
Date