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

Equal Employment Opportunity Commission

Mar 21, 2019

2019000990 (E.E.O.C. Mar. 21, 2019)

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

Lela M.,1
Complainant,

v.

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

Appeal No. 2019000990

Hearing Nos. 480-2016-00186X
480-2016-00560X

Agency Nos. 4F-967-0003-15
4F-967-0005-16

DECISION

On September 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 16, 2018 final action concerning equal employment opportunity (EEO)
complaints 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 an Executive and Administrative (EAS)
Level 22 Postmaster at the Agency’s Hilo, Hawaii Post Office.

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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Complainant filed two formal complaints, on February 4, 2015 and January 8, 2016,
respectively. In the two formal complaints, Complainant claimed that the Agency discriminated
against her in reprisal for prior EEO activity when:

1. on November 6, 2014, her manager issued her a Personal Improvement Plan (PIP)
(Agency No. 4F-967-0003-15, hereinafter referred to as “Complaint 1”);

2. on November 6, 2014, the manager started the process of issuing her discipline for
her failure to attend an office event (Complaint 1);2 and

3. on October 15, 2015, she was instructed to report to a lower-level post office for a
Developmental Detail (Agency No. 4F-967-0005-16, hereinafter referred to as
“Complaint 2”).

The record reflects that the Agency consolidated Complaints 1 and 2.

After an investigation of Complaints 1 - 2, Complainant was provided a copy of the investigative
file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the
Agency filed a Motion for a Decision Without a Hearing. On August 2, 2018, the AJ issued a
decision by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the formal complaint:

During the relevant period, the Manager Post Office Operations was Complainant’s immediate
manager.

The record reflects that Complainant obtained her Postmaster position through a settlement of a
prior EEO complaint which did not implicate the manager.

Following Complainant’s appointment as Postmaster of the Hilo Post Office in May 2014,
performance of the office struggled. Complainant was coached and assisted by a supervisor and
two other Postmasters in September, under the direction of her manager.

2 On February 26, 2015, the Agency issued a final decision dismissing claims 1 - 2 (Complaint 1)
for failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and
remanded the matter to the Agency for further processing. Complainant v. United States Postal
Service, EEOC Appeal No. 0120151534 (August 5, 2015). Following the Commission’s
decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108,
which is now the subject of the instant appeal.

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Regarding claim 1, Complainant asserted that on November 6, 2014, her manager issued her a
Personal Improvement Plan (PIP).

The manager stated that on November 6, 2014, he issued Complainant a PIP with specific areas
and goals for improvement. Specifically, the manager stated he issued Complainant a PIP
because her office “has been performing poorly over a period of time. There was no
improvement in her office performance even with coaching and assistance from other high
performing Postmasters.” The manager further explained that the purpose of the PIP was for
Complainant’s “own personal development due to lack of communication between her staff.”

The record reflects that Complainant’s performance improved while she was on the PIP and as a
result, the manager took Complainant off the PIP in January 2015.

Regarding claim 2, Complainant alleged that on November 6, 2014, the manager started the
process of issuing her discipline for her failure to attend an office event.

According to the manager, Complainant did not attend a mandatory year-end meeting at the
Honolulu District Office in November 2016. As a result, the manager conducted an interview
with Complainant to determine why she did not attend the meeting. After Complainant indicated
that she had a medical reason for not attending the meeting, the manager ended the interview.
Agency management took no action against Complainant as a result of the interview.

Regarding claim 3, Complainant alleged that on October 15, 2015, she was instructed to report to
a lower-level post office for a Developmental Detail.

The record reflects that after Complainant’s PIP ended in January 2015, after some initial
improvement, her performance declined again. During the period of October 1, 2015 to October
16, 2015, the Hilo Post Office was the worst performing office of the 18 offices in the Honolulu
District.

Based on Complainant’s performance history and the ongoing problems at the Hilo Post Office
under her leadership, the manager decided to temporarily detail Complainant to the position of
Postmaster, Keaau Post Office effective October 17, 2015. The manager directed Complainant
to focus on four areas of improvement: scanning, communication, wait time, and Delivery
Management System (DMS) observations. Complainant was detailed to the Keaau Post Office
in an effort to improve her management skills and performance by temporarily overseeing a
smaller facility.

The record reflects that the Postmaster of the Keaau Post Office supervisors approximately 11
employees while the Postmaster of the Hilo Post Office supervisors approximately 73
employees. By email dated October 15, 2015, Complainant informed the manager that she
would not accept the detail to the Keaau Post Office. Specifically, Complainant stated that she
was not satisfied with the reasons for instructing her to report to the detail.

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On the same day, October 15, 2015, the manager responded to Complainant’s email, stating the
specific performance deficiencies that were the basis for the detail. Complainant subsequently
called in sick and remained on leave from October 16, 2015 until she finally returned to duty on
January 22, 2018.

The record reflects that Complainant did not report for the developmental detail until she
returned to duty on January 22, 2018. She did not suffer any loss of grade or pay as a result of
the developmental detail.

Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was
established.

The Agency issued the instant final action adopting the AJ’s decision.

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.
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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 the disputed actions.
Specifically, Complainant was placed on the PIP because management asserted her post office
had been performing poorly for a significant period of time and had not improved despite
coaching and assistance provided Complainant by several other postmasters. The PIP was
assertedly designed to clarify to Complainant the areas needing improvement and to set
measurable goals. With regard to missing the meeting, it was a mandatory year-end management
meeting for the district. However, it appears that after Complainant indicated her absence was
for a medical reason, the matter was not pursued further and no disciplinary action was issued.
Finally, concerning the developmental detail, the manager stated that sometime after
improvement was seen following the PIP, Complainant’s performance again began to decline
and the detail was proposed to correct those problems. However, it appears Complainant refused
to go on the detail and was not forced or disciplined.

After careful review of the evidence, we concur with the AJ that Complainant did not prove, by a
preponderance of the evidence, that these proffered reasons were a pretext designed to mask
discrimination or unlawful retaliation.

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.
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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.

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.

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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 21, 2019
Date