Juliet B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Oct 8, 2019

0120182519 (E.E.O.C. Oct. 8, 2019)

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

Juliet B.,1
Complainant,

v.

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

Appeal No. 0120182519

Agency No. 4K-270-0136-17

DECISION

On July 12, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 12, 2018, 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.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to discrimination based on her race and sex.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the
Burlington Post Office in Burlington, North Carolina.

On December 18, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) 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. on August 31, 2017, Complainant became aware that management has failed to comply
with a May 12, 2017 grievance settlement that awarded Complainant back pay; and,

2. on September 28, 2017, Complainant was sent home and required to use sick leave.

On January 18, 2018, the Agency issued a Partial Acceptance/Dismissal letter to Complainant.
Regarding Claim 1, the Agency determined Complainant was lodging a collateral attack on the
proceedings of another forum, specifically proceedings related to the Collective Bargaining
Agreement. Therein, the Agency dismissed Claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.

The Agency accepted Claim 2 for investigation. The investigative record reflects the following
pertinent matters relating to the subject claim.

Prior to the incident, Complainant acknowledged that she was advised that she could not incur
overage in hours that exceeded 2080 hours in a certain guarantee period. Management stated that
it was the Agency’s policy that any carrier close to incurring overages on a 2080 work period
would not be able to work further during said guarantee period.

On September 28, 2017, Complainant was sent home for seven days. Complainant stated that
management had ample notice that her route, Rural Route 21, was not properly documented and
was misclassified in the evaluation of hours. Complainant asserted that it was discriminatory of
the Acting Postmaster (Caucasian, male) and the Supervisor (Caucasian, male) to require her to
use her sick leave to prevent her from going over 2080 hours. Complainant also noted that while
she stayed home for seven days, she asserted that management was going to provide back pay and
sick leave when she returned. Yet, Complainant asserted that she did not receive either upon her
return. Management denied ever offering to provide back pay or return her sick leave usage. The
Supervisor stated that it was Complainant’s preference to use sick leave to cover her time.

The Acting Postmaster stated that local management made the decision to send Complainant home
because she had worked her given hour allowance and was going to go over her 2080 hours. The
Acting Postmaster stated that he was unaware of Complainant being required to use sick leave.
The Supervisor stated that management did not force Complainant to use sick leave, but that it was
Complainant’s choice to use sick leave.

Complainant noted that at least four Caucasian, male employees, at other locations, were not
required to take leave when they went over 2080 hours. The Supervisor stated that while he was
not aware of three of the named comparators, one of the named Caucasian, male comparators was
also required to use leave when he was close to going over the allotted 2080 hours. The Postmaster
and the Supervisor of Customer Service were unaware of the comparators using leave for hour
overages. Management stated that no one else at the branch had gone over their hours, and
therefore no one else had been sent home.

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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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, 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.

CONTENTIONS ON APPEAL

Neither Complainant nor the Agency provided any appellate briefs.

ANALYSIS AND FINDINGS

As a preliminary matter, we note that the Agency procedurally dismissed Claim 1 for failure to
state a claim. Based on the record, we do not find it necessary to disturb the Agency’s procedural
dismissal.

Standard of Review

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 (EEO MD-
110), 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”).

Disparate Treatment

Complainant alleges that she was subjected to 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 a 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, n. 13; 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. 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. 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 its actions, the factual inquiry
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can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the agency’s actions were
motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

Analysis

Even if we assume arguendo that Complainant established a prima facie case of discrimination on
her claimed bases, the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, in this matter, Complainant was going to incur overages on a set 2080 guarantee
period. This resulted in management sending Complainant home for a duration of time to make
sure she did not go over her hours. Complainant asserted that upon her return she was informed
that she would receive back pay, and her used sick leave back. However, there is no indication that
such promises were made to Complainant. Additionally, the policy is an Agency wide policy that
has affected others as well, including one of the named comparators. Based on the record, we find
that the Agency has articulated legitimate, nondiscriminatory reasons for sending Complainant
home to avoid her incurring overages.

Additionally, we determine that Complainant has failed to show that the reason provided was
merely pretext for discrimination. In these matters, pretext inquiry is not concerned with bad
judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Security, EEOC
Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best,
or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions
or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient
because subjective belief, however genuine, does not constitute evidence of pretext. The focus of
pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further,
at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency was motivated by prohibited discrimination.
Complainant has not established that the Agency’s reasons were pretext for unlawful
discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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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).
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

October 8, 2019
Date