Bernardina N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0120151840 (E.E.O.C. Mar. 17, 2017)

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

Bernardina N.,1
Complainant,

v.

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

Appeal No. 0120151840

Hearing No. 480-2015-00133X

Agency No. 4F-920-0126-11

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 1,
2015, final decision concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a full-time City
Letter Carrier at the Riverside, California Post Office. Complainant’s first level supervisor
was the Supervisor Customer Service (S1).

On June 29, 2011, Complainant had an accident with her postal vehicle. Complainant parked
her postal vehicle behind her privately owned vehicle (POV) to get her sun visor and got out of
the postal vehicle. When Complainant arrived at her POV, she turned around and observed
the postal vehicle moving backwards. Complainant ran to stop the postal vehicle and fell. The
postal vehicle hit a second POV in the parking lot.

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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On June 29, 2011, Complainant was placed in an Emergency Placement in Off-Duty Status
Without Pay pursuant to Article 16.7 of the National Agreement between the union and the
Agency. Complainant was charged with failure to observe safety rules and regulations when
on June 29, 2011, she was involved in a vehicle accident in the employee parking lot of the
Riverside Main Post Office.

On July 26, 2011, Complainant was issued a Notice of Removal. Complainant was charged
with unsafe operation of a postal vehicle as a result of the June 29, 2011 accident. The Notice
of Removal stated that Complainant’s accident occurred after she failed to place her vehicle in
park and set the brake.

On October 25, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of age (59) when:

On June 29, 2011, Complainant was paced in an off duty status, and on July 26, 2011,
was issued a Notice of Removal dated July 12, 2011.

Complainant filed a grievance regarding the placement on Emergency Suspension. The record
reveals that the Letter of Placement in Off-Duty Status was rescinded by arbitration on
February 2, 2012, due to a procedural defect. The Arbitrator’s decision stated it did not reach
the issue of what Complainant did or did not do that allowed the vehicle to move and did not
consider whether the Agency was required to look for non-driving duties to assign
Complainant between June 29, 2011 and July 26, 2011.

Complainant also filed a grievance regarding her removal. The record reveals that the Notice
of Removal was mitigated to a 30-day Suspension on March 29, 2012. The Arbitrator found
the Agency did not have just cause for issuing the Notice of Removal as charged for
Complainant’s first offense. The Arbitrator found that Complainant was at fault for causing a
preventable roll-away accident with her postal vehicle. However, the Arbitrator did not concur
with the removal of a 24-year employee who had no prior history of vehicle accidents or
discipline. The Arbitrator found the appropriate remedy was a 30-day suspension with no pay.

At the conclusion of the investigation on her EEO complaint, 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 Opportunity Commission Administrative Judge (AJ).
Complainant requested a hearing but the AJ denied the hearing request on the grounds that
Complainant failed to cooperate and failed to comply with the AJ’s Orders. The AJ remanded
the complaint to the Agency, and 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.

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On appeal, Complainant states that her EEO representative retired from the Agency and she
claims she did not know when he retired. Complainant states she did not receive any
information for a “phone hearing.” Complainant claims she did not fail to cooperate.

In response to Complainant’s appeal, the Agency notes the AJ determined Complainant failed
to adequately respond to the AJ’s Order to Show Cause why the complaint should not be
dismissed for failure to cooperate, after Complainant failed to respond to the Agency’s motion
for a decision without a hearing, failed to submit any prehearing report, and failed to appear at
the telephonic prehearing conference. The Agency noted that with regard to Complainant’s
claim on appeal that at some unknown time her representative retired from the Agency, the AJ
specifically considered her response to the Order to Show Cause that she did not “understand
the paperwork and cannot afford an attorney.” The Agency states the AJ also noted that
Complainant claimed her union representative retired, although she was not sure of when that
occurred, and that she felt that she was incapable of representing herself. The Agency notes
that nonetheless, the AJ recognized Complainant was able to go into “significant details” about
the equitable remedy she sought, explaining how she arrived at her final calculation of
$389,333.00, and stating in detail how and why she wished to amend her EEO complaint.
Thus, the Agency argues the AJ already took into account Complainant’s lack of representation
in reaching a decision to dismiss the matter.

Additionally, the Agency notes that the AJ found Complainant’s claim that she did not receive
documents referenced in the Order to Show Cause - without stating which documents she
claims not to have received despite the fact that she admitted she received the Order to Show
Cause itself - was not credible, since the Order to Show Cause and the other documents were
certified to have been sent to Complainant’s current address. Thus, the Agency notes the AJ
took into account and thoroughly considered Complainant’s claims that she only received some
documents but not others, in reaching his decision to dismiss the matter.

Further, the Agency notes it presented legitimate, nondiscriminatory reasons for its action.
The Agency argues Complainant failed to show the Agency’s reasons were pretextual.

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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

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At the outset, we find Complainant failed to show that the AJ’s dismissal of her hearing
request constituted an abuse of discretion. Moreover, we find that the record is adequately
developed.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima
facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. S1 stated that he issued the notice to place Complainant in off-duty as a result of the
accident occurring on June 29, 2011. S1 noted that after placing Complainant off-duty, he
conducted an investigative interview regarding the circumstances of the accident. He averred
that Complainant stated when she exited her vehicle, it rolled away and she fell trying to stop it
before it hit another vehicle in the employees’ parking lot. S1 also issued Complainant the
Notice of Removal as a result of the same accident. However, since S1 was off work the day
the Notice of Removal was mailed, another supervisor signed and mailed the Notice of
Removal for S1.

The record contains an affidavit from the Postmaster at the time of the accident who has since
retired. The Postmaster noted he was Complainant’s third level supervisor during the relevant
time. He stated he was not the concurring official regarding the placement in an off-duty
status or the Notice of Removal. The Postmaster was aware of the accident and stated that
Complainant “blatantly disregarded the rules regarding dismounting a postal vehicle which
resulted in a roll-away vehicle accident.” He stated for that reason she was placed off work,
put into a non-pay status, and issued a Notice of Removal.

Complainant claimed that she had not left the engine on in her vehicle involved in the accident.
Complainant also argued that the accident was minor and the discipline was severe. In
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addition, she claimed that Comparative 1 and Comparative 2 were involved in accidents and
were not placed on emergency suspension or removed.

We find Complainant failed to show that the cited comparatives were similarly situated and
treated differently. In her affidavit, Complainant admitted that Comparative 1 and
Comparative 2 were not supervised by S1. Complainant stated that Comparative 1’s accident
occurred six years ago. The record reveals that Comparative 1 was within the same protected
age class as Complainant (although she was eight years younger than Complainant). S1 stated
he did not know Comparative 1 and noted she worked at the Roubidoux, California Post Office
and not the Riverside Post Office. S1 did not know if Comparative 1 operated a postal vehicle
in an unsafe manner. S1 noted that Comparative 2 was a City Carrier but no longer worked at
the Riverside Post Office. S1 did not recall Comparative 2 being in an accident or receiving
discipline for an accident. S1 stated he was not Comparative 2’s regular supervisor. S1 stated
that no other comparative employees had engaged in the same unsafe conduct as Complainant
within the past two years. Upon review, we find Complainant failed to establish by a
preponderance of evidence that the Agency’s actions were a pretext for discrimination based on
her age.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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
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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
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

March 17, 2017
Date