Aliza C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 13, 2019

2019001884 (E.E.O.C. Sep. 13, 2019)

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

Aliza C.,1
Complainant,

v.

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

Appeal No. 2019001884

Agency No. 1G-731-0025-16

Hearing No. 560-2017-00176X

DECISION

On January 31, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 29, 2018 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.

BACKGROUND

During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s
Oklahoma City Processing and Distribution Center in Oklahoma City, Oklahoma.

On October 31, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her on based on race (African-American), sex (female), and
color (black) when, on July 22, 2016, she was issued a Notice of Removal for the violation of a
Last Chance Agreement.

After an investigation of the complaint, the Agency provided Complainant with a copy of the
investigative file, and Complainant requested a hearing before an EEOC Administrative Judge

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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(AJ). The AJ assigned to the case issued a Notice of Proposed Summary Judgment on
September 24, 2018. Complainant responded to the Notice of Intent. On November 14, 2018,
the AJ issued a decision by summary judgment in favor of the Agency.

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts.

On or about September 21, 2015, Complainant was issued a Notice of Removal. As a result,
Complainant reached a settlement agreement and on December 2, 2015, Complainant and
Agency management executed a Last Chance Agreement (“LCA”).2

The record reflects that the December 2015 LCA provided, in pertinent part, that:

[Grievant] [a]grees that Grievant must maintain harmonious working relationships
and not do anything that would contribute to an unpleasant working environment.
a proven instance of creating a disharmonious working environment constitutes
cause for imposition of discipline, up to and including discharge.

. . .

[Grievant] [a]grees that any instance of proven verbal assault, verbal harassment
and or intimidation, by words or gesture, including profanity and/or abusive
language, causing anxiety or interfering with performance of employee’s official
duties on the part of Grievant constitutes cause for discipline, up to and including
discharge.

[Grievant] [a]cknowledges that failure to comply with any of the terms and
conditions of this agreement will warrant removal from the Postal Service…

On July 13, 2016, Complainant allegedly to have become involved in a verbal altercation with
another employee. As a result, on July 22, 2016, Complainant was issued a Notice of Removal
for the violation of the LCA.

Complainant filed a grievance and a hearing was conducted on April 13, 2017. The Arbitrator
issued a decision dated May 23, 2017, finding that while Complainant’s LCA was subject to
arbitration, the LCA was enforceable. The Arbitrator did not order the Agency to reinstate
Complainant to Agency employment.

The Agency found that “on Wednesday July 13, 2016, …[Complainant] was involved in a verbal
altercation with another coworker in the unit named [Co-worker]. [Complainant’s] conduct on

2 The record reflects that in his decision, the AJ noted while Complainant objected to the
unsigned LCA attached to her notice of removal, it was undisputed and Complainant admitted in
her affidavit that she signed a LCA and this document is contained in the Report of Investigation.
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the work room floor caused disruption to other workers trying to perform the duties of their job.
After removing [Complainant] and [Co-worker] from the work room floor, myself, [Supervisor
Distribution Operations], and [Manager Distribution Operations] tried deescalating the problem
by giving each employee the opportunity to state their issue. Both employees continued to use
vulgar/filthy/disgusting language toward each other. After several attempts to stop the name
calling and bad language, we ended the meeting and instructed each employee to write
statements of what took place on the work room floor.” The Agency determined this conduct
was a violation of Complainant’s LCA and issued her the Notice of Removal.

On or around July 13, 2016, Complainant provided a written statement which was made
following the event at issue. Complainant signed and dated the statement. In her statement,
Complainant wrote that [Co-worker] called her “a slut, said she was sleeping with a manager,
said she ‘pull (sic) my pants up in my vagina to get ‘special treatment.’” Complainant
acknowledged during the verbal exchange, she told the Co-worker the following “I then brought
up someone in the plant who she had dealings with and she got even louder and [referred] (sic) to
his now girlfriend as a dumb fat slut that pays his child support.” The record reflects that during
the Arbitration hearing, the union conceded that the Agency had proven that Complainant and
Co-worker were arguing.

The AJ determined that it was undisputed Complainant signed a LCA and that it was undisputed
the LCA “had a provision that prohibited Complainant from, any instance of proven assault,
verbal harassment and or intimidation, including profanity and/or abusive language, or
interfering with the performance of an employee’s official duties on the part of the Grievant
constitutes cause for discipline, up to and including discharge [emphasis in its original].”

In addition, the AJ noted that there was nothing ambiguous about the language in the LCA and
“it was clear the agreement was to be in effect for 18 months from the date the agreement was
signed by the parties…it was clear that a violation of the agreement would result in the
termination of Complainant’s employment.” The AJ noted that while Complainant may dispute
that her behavior violated the LCA, she failed to produce evidence to dispute the Agency’s
legitimate nondiscriminatory reason for the termination of her employment, namely, that Agency
management employees believed Complainant’s behavior violated the agreement based on what
they witnessed.”

The Supervisor Distribution Operations (African-American female, brown) stated that she was
the deciding official to issue Complainant the Notice of Removal dated July 22, 2018 based on
her violation of the terms of the LCA.

Moreover, the supervisor stated that Complainant’s race, sex and color were not factors in her
decision to issue the July 22, 2018 Notice of Removal.

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final action, adopting the AJ’s decision.

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The instant appeal followed.

ANALYSIS AND FINDINGS

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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party 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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions – that
Complainant was terminated due to violating the LCA. Complainant did not prove, by a
preponderance of the evidence, that these proffered reasons were a pretext designed to mask
discrimination.

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We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.

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.
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).
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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

September 13, 2019
Date