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

Equal Employment Opportunity Commission

Aug 6, 2020

2019002565 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margeret M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019002565 Agency No. 4G700010718 DECISION On March 3, 2019, 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 February 13, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant at the Agency’s Donaldsville Post Office in Donaldsville, Louisiana. On April 16-17, 2018, Complainant attended her employee orientation, and she stated that she was not paid for her attendance. Report of Investigation (ROI) at 69-70. Complainant stated that on April 28, 2018, she did not receive proper training to effectively perform her duties because her trainer “did not know anything.” ROI at 79. Complainant stated that on May 2-5, and 21, 2018, the Postmaster (PM) stated that Complainant was moving too slowly, and that she would be terminated if she did not move faster. ROI at 71. 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. 2019002565 2 Complainant stated that on May 4, and 24, 2014, PM required her to perform her vehicle safety check and set up her scanner while she was off the clock. ROI at 72. Complainant also stated that on multiple dates in May 2018, she was not permitted to start work in accordance with the schedule, and that PM observed Complainant deliver the mail on her route. ROI at 73-6. Complainant stated that on unspecified dates, PM required her to drive a vehicle that Complainant believed to be unsafe. ROI at 80. Complainant stated that on or about May 14, 2018, PM instructed her to deliver mail in her personal vehicle when her work vehicle went for maintenance, but that the Agency did not pay for Complainant’s mileage for using her personal vehicle. ROI at 83. Complainant stated that on May 23, 2018, she found a package in the back of her truck, and that PM told Complainant to clock out and drop it off on her way home. ROI at 82. On May 24, 2018, PM issued Complainant a notice of removal for unacceptable driving practices. PM stated that she observed Complainant driving through an intersection with her door open and grabbing a package while driving. ROI at 98-99. On July 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against, and harassed her on the basis of age (46) when: 1. on April 16-17, 2018, she was not paid for her time spent at the employee orientation;2 2. on May 2, and 21, 2018, management stated that she was moving too slowly and that she would be terminated if she did not move faster; 3. on May 4, and 24, 2018, she was required to perform the daily vehicle safety check and set up her scanner while off the clock; 4. on May 4, and 24, 2018, she was not permitted to start work, as indicated on the work schedule; 5. on May 21,22 and 24, 2018, she was observed while delivering mail on her route; 6. on May 24, 2018, she was issued a notice of removal for unacceptable driving practices, with an effective date of June 6, 2018;3 7. on April 28, 2018, she failed to receive proper training to effectively perform her duties; 2 Complainant did not initially provide the dates for some of the incidents when she filed her formal complaint, but she later provided the dates in her affidavit. 3 We note that the removal notice did not include an effective date of June 6, 2018, and that Complainant stated that her last day was May 24, 2018. ROI at 77. 2019002565 3 8. on unspecified dates, she was required to drive a vehicle that she believed was unsafe; 9. on May 23, 2018, she was required to deliver a package while off the clock; and 10. on May 14, 2018, she was not paid while using her own private vehicle to deliver mail. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed for the sake of argument, that Complainant established a prima facie case of age discrimination, and found that management officials articulated legitimate, nondiscriminatory explanations for their actions. The Agency then found that Complainant did not prove that the stated reasons were pretext for discrimination. Complainant stated that she believed that age was a factor because she did not challenge or disrespect PM. However, the Agency found that Complainant’s allegations were not supported by the totality of the record, and that she had not presented any evidence that demonstrated that PM’s reasons for her actions were factually baseless or not her actual motivation. For Complainant’s harassment allegation, the Agency presumed that the actions occurred as alleged. The Agency noted that Complainant submitted unsworn witness statements in support of her allegation. However, the Agency found that even accepting the statements as true, there was no evidence that the alleged harassment occurred due to Complainant’s age. The Agency also determined that the complained of incidents were not severe or pervasive, and that they did not rise to the level of harassment. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS 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, at Chap. 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”). 2019002565 4 Disparate Treatment Generally, claims of disparate treatment are examined under the 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community 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 Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of age discrimination, we find that the Agency proffered legitimate, nondiscriminatory reasons for their actions. For claim 1, PM stated that she believed that Complainant has been paid for attending the orientation. ROI at 145. The record shows that a Human Resources manager found that Complainant had not been paid for the orientation, and that the Agency was taking steps to compensate Complainant. ROI at 169. Regarding incident 2, PM denied making the alleged statement. ROI at 145. For incident 3, PM stated that Complainant was not required to work off the clock, and that if she did so, it was by choice. Regarding claim 4, PM stated that the weekly schedules are posted, and that employees are contacted if the schedule is changed. ROI at 146. For claim 5, PM stated that she normally conducted two street observations a day, and that she observed Complainant. ROI at 149. Regarding claim 6, PM stated that she issued Complainant the notice of removal due to unacceptable driving practices, and that she had prior conversations with Complainant regarding her driving practices. PM added that Complainant did not disagree that she broke driving practices rules. ROI at 150-1. For incident 7, PM stated that Complainant was properly trained when she shadowed the employee who worked Complainant’s route. ROI at 151. For incident 8, PM stated that Complainant did not inform her that she believed that her vehicle was unsafe. Regarding incident 9, PM stated that when employees fail to deliver a package, they are instructed to deliver them on their way home. ROI at 153. For incident 10, PM stated that Complainant chose to use her personal vehicle because she did not want to wait for a replacement vehicle, and that drivers are paid mileage for using their personal vehicles only when they are authorized to do so. ROI at 154-5. 2019002565 5 Complainant has not shown that the proffered reasons were pretext for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. On appeal Complainant asserted that PM made false statements, but she did not point to any evidence showing that PM was not truthful. Instead, Complainant made bare assertions that PM discriminated against her based on her age, which are insufficient to prove pretext. Complainant has not shown that similarly situated persons not in her protected age category were treated differently. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age. Harassment As discussed above, we found that Complainant did not establish a case of discrimination based on her age. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her age. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, we AFFIRM the Agency’s final decision 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. 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. 2019002565 6 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 August 6, 2020 Date