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

Equal Employment Opportunity Commission

Jul 21, 2017

0120161654 (E.E.O.C. Jul. 21, 2017)

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

Loida J.,
Complainant,

v.

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

Appeal No. 0120161654

Agency No. 4K-290-0092-15

DECISION

On April 23, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s March 24, 2016, 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 decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a PSE Mail
Processing Clerk at the Agency’s Beaufort, Post Office.

On October 28, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of race (African-American) when:

On June 25, 2015, her transfer request to a facility located in Columbia, South Carolina
was denied.

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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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

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”).

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).

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
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
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Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The Postmaster noted that Complainant verbally asked him to check into the possibility of a
transfer for her to Columbia as she told him she would be attending law school there. The
Postmaster stated that he discussed the request with the Manager, Post Office Operations who
stated that transfers were not available for PSEs. The Postmaster stated he shared this
information with Complainant.

The Manager, Post Officer Operations stated that there were no contractual provisions to allow
for the transfer Complainant requested and explained that no PSE transfers were allowed per the
contract. He stated that Complainant was informed she would have to apply for positions that
she wanted.

The Human Resources Manager explained that the contractual language in effect at the time, the
National Memorandum of Understanding (MOU), prohibited PSEs from reassignment from one
installation to another. The Human Resources Manager cited the MOU and question 25 of the
APWU and USPS Clerk Craft Question and Answer document. The Human Resources Manager
stated that the MOU was signed on March 20, 2014, and extended to October 31, 2014, with no
end date.

The record contains a copy of the MOU in effect at the time. The relevant part of the MOU
stated that, “During the terms of this agreement no reassignments in the clerk craft will be made
within or between installations or from other crafts unless the reassignment is made based on a
mutual exchange in accordance with Article 37.2.D.7, or through Article 12 involuntary
reassignment process or pursuant to this agreement.”

The record also contains the “APWU and USPS Clerk Craft Question and Answers dated
4/22/2014 for the MOU Re: Filling of Residual Vacancies dated 3/20/2014.” According to this
document, question 25 asked if Clerk Craft PSEs will be allowed to voluntarily transfer from
installation to installation during the terms of the MOU. The answer to question 25 stated: “No.
PSEs may be utilized in different installations on a temporary basis based on operational needs,
but their relative standing will remain in their ‘home’ installation.”

Complainant disputed management's reason for the denial of her transfer because she was trying
to further her education, her dad lives in Columbia with Stage 4 cancer, and she is the only child
in South Carolina. Complainant claimed her race was a factor because a Comparative was
allowed to transfer, and she stated the only difference between her and the Comparative was the
color of their skin. Complainant felt that she should have been transferred because “if it is good
enough to be done for one, it should be done for all.”

Despite Complainant’s contention, the record reveals that the Comparative was not actually
transferred but was loaned to another office. The record shows that the Comparative was loaned
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due to the operational needs of the other office and not for personal gain. The Postmaster
confirmed that the Comparative worked at the Hampton Post Office but was never transferred
there and remained assigned to the Beaufort Post Office. The Human Resources Manager also
stated that the Comparative was loaned to another office and the assignment to the other office
was considered temporary. The Human Resources Manager noted that the contract permits the
loaning of a PSE to other offices, but the loaned employee continues to remain on the rolls of the
loaning office and counts against the loaning office’s staffing.

Upon review, we find Complainant failed to establish by a preponderance of evidence that she
was subjected to discrimination based on race. The Agency presented legitimate,
nondiscriminatory reasons for denying Complainant’s transfer, i.e., that PSEs were not permitted
to be transferred per the MOU. Complainant failed to show that any similarly situated
comparative was treated differently. Further, Complainant failed to show that the Agency’s
actions were a pretext for discrimination or based on discriminatory animus.

CONCLUSION

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

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
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(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. 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

July 21, 2017_
Date