Dixie B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 4, 2019

0120182598 (E.E.O.C. Oct. 4, 2019)

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

Dixie B.,1
Complainant,

v.

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

Appeal No. 0120182598

Agency No. 4J-460-0007-18

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 13, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier at the Agency’s New Augusta,
Indiana Branch, but was serving a detail assignment as an Mail Transportation Equipment
(“MTE”) Coordinator for the Indianapolis Processing and Distribution Center and the Mail
Processing Annex in Indianapolis, Indiana.

On January 26, 2018, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against her based on race (white, American), sex (female/straight), color (white),
disability (feet/shoulder), age (YOB: 1977), and in reprisal for prior protected EEO activity
when:

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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1. In November 2017, Complainant’s detail was ended; and

2. Complainant’s Manager stated that she was not allowed overtime.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant
did not respond.

On July 13, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. On appeal, Complainant argues that she requested a hearing and
indicates that she would still like to have a hearing. Complainant further argues that the Agency
discriminated against her.

ANALYSIS AND FINDINGS

Preliminary Matter – Hearing Request

As an initial matter, we address Complainant’s statement on appeal that she timely requested a
hearing on her complaint. Complainant has not provided any documentation or evidence to
support this statement. Therefore, we deny Complainant’s request on appeal for a hearing in the
instant matter.

Disparate Treatment

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

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
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analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant testified that she has a permanent shoulder injury and she also has bone spurs and
plantar fasciitis in both feet. Complainant stated that because of these injuries, she is unable to
perform her duties as a City Carrier as stated on her SF-50. She was therefore placed on a
modified assignment as an MTE Coordinator in October 2013 but alleges that her Manager
(“M1”) ended her detail on November 17, 2017. Complainant further stated that she has work
limitations which included no climbing or reaching above the shoulder; lifting with left upper
extremity only; light intermittent pushing not to exceed 10 pounds; 8 hours grasping, intermittent
driving; and intermittent twisting, bending, and kneeling. We determine for purposes of analysis
that Complainant is an individual with a disability within the meaning of the Rehabilitation Act.

Here, the Agency articulated legitimate non-discriminatory reasons for its actions.

Regarding claim 1, M1 met with Complainant on November 1, 2017 and discussed
Complainant’s leave requests. However, Complainant’s detail was mentioned during the
meeting. M1 acknowledged that she informed Complainant during the meeting that “details are
a privilege,” but denied telling Complainant that another employee wanted her position. M1
explained that she informed Complainant that she would review Complainant’s detail assignment
when Complainant returned from a scheduled medical procedure. M1 further explained that
Complainant left work on November 16, 2017 at 8:00 am for a dentist appointment and did not
return to work. M1 stated that on December 12, 2017, she received a leave request from
Complainant indicating that Complainant requested “surgery leave for work injury” beginning
on November 17, 2017 through January 28, 2018. M1 further stated that she signed the leave
request on December 12, 2017 and Complainant has not reported back to work as of April 4,
2018. Nevertheless, M1 clarified that Complainant’s rate of pay and location had not changed
since her medical procedure.

The Lead Network Specialist testified that to her knowledge Complainant was still being paid at
the detail level.

The Senior Plant Manager (“M2”) testified that Complainant was currently on sick leave. M2
explained that Complainant had a settlement agreement which allowed her to remain in the detail
position at the time. M2 stated, however, that the position was not a lifetime offer.

Regarding claim 2, M1 did not recall telling Complainant that she could not work overtime. M1
explained that Complainant did not sign the overtime desired list for the period September 11,
2017 through November 17, 2017. M1 stated, however, that Complainant worked overtime
during this period. M1 further stated that overtime is not guaranteed for any employee.
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A copy of Complainant’s time and attendance records confirms that Complainant worked
overtime during the period at issue.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, sex, color, disability, age, and reprisal for prior protected EEO activity.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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.
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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

October 4, 2019
Date