0120170958
08-30-2017
Mandi G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mandi G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120170958
Hearing No. 4J-460-0066-15
Agency No. DOL1202120
DECISION
On January 11, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 7, 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. Following the Arbitration, Complainant continued forward with the EEOC administrative process. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Agency discriminated against Complainant based on her sex (female) or reprisal (prior protected EEO activity), when Complainant was disciplined for a verbal altercation with a member of the public.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Munster Branch of the Hammond, Indiana Post Office facility in Hammond, Indiana.
On April 21, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal when she was issued a Notice of Removal after verbally confronting a patient in a doctor's office while Complainant was engaged in delivering mail as a City Carrier. Complainant maintained that male postal employees had engaged in substantially the same conduct, but were not disciplined.
On March 3, 2015, while delivering mail to a doctor's office, Complainant confronted a 69-year-old patient while the patient was seated in the office of her physician. The incident stemmed from Complainant's allegation that the patient had cut her off while entering the parking spaces adjacent to the physician's office. Complainant, the patient, the physician, his employees, and other patients in office became involved in the altercation. Complainant was asked to leave, which she did, but she then came back in and started apologizing to the staff and the physician. She continued to argue with the patient stating that it was her fault and she knew she was wrong.
The next day, Complaint returned and again expressed remorse for her actions to the physician. According to the Agency, Complainant did not have authorization from management to stop delivering mail to meet with the physician. Furthermore, the Agency indicated that after speaking to Complainant, the physician decided not to contact her patient on behalf of the Agency for an interview. After an internal investigation by postal authorities, Complainant was issued a Notice of Removal.
Complainant filed a grievance with the Union, and, after a hearing, an arbitrator reduced the Notice of Removal to a fourteen (14) day suspension. In her EEO complaint, Complainant alleged that she had been disciplined because of her sex and for engaging in prior EEO activity. She claimed that other postal employees had engaged in similar verbal altercations, but had not been disciplined.
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. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not provide a statement on appeal.
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").
Discrimination Based on Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming Complainant can establish a prima facie case of discrimination based on sex and reprisal, we find that the Agency has presented a legitimate, non-discriminatory reason for its actions, i.e., Complainant engaged in a verbal altercation with a sixty-nine (69) year old patient in a physician's office about a parking spot. Her behavior led to others in the office getting involved to protect the patient. The next day, Complainant, during an on-going investigation, went to speak with a witness, the physician. After this conversation, the physician refused to provide contact information for her patient to management.
We also find no evidence of pretext here. Although Complainant identified C-1 as a similarly situated employee, the record indicates that he had a verbal argument with another postal worker while on postal property. Moreover, Complainant identified C-2 as a similarly situated individual who had a disagreement with a customer. The record indicates, however, that C-2 was calm, and did not create a disturbance or raise his voice. The customer, on the other hand, was the individual who raised his voice. We simply find no persuasive evidence that Complainant's sex or prior EEO activity play any role in this matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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.
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
_8/30/17_________________
Date
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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