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

Equal Employment Opportunity Commission

Mar 5, 2019

2019001102 (E.E.O.C. Mar. 5, 2019)

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

Mitzie W.,1
Complainant,

v.

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

Appeal No. 2019001102

Agency No. 1F-901-0052-18

DECISION

On September 27, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 11, 2018 final decision concerning an equal employment opportunity
(EEO) complaint 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., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Parcel Post Distribution Machine Clerk at
the Agency’s International Service Center in Los Angeles, California.

On March 19, 2018, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her on the bases of race (Asian), sex (female), color (yellow),
and age (over 40) when:2

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.

2 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1–3.
2019001102

2

1. on unspecified dates, management allowed Complainant’s co-worker to determine
who could receive overtime; and

2. on December 9, 2017, management allowed Complainant’s co-worker, in his capacity
as Safety Captain, to take her chair and leave it in an unsafe condition; and

3. on unspecified dates, management allowed Complainant’s co-worker to harass her on
the workroom floor.

After the investigation of the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision dated September 11, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed.

ANAYLSIS AND FINDINGS

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 complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. 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 based on a prohibited reason. See 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 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
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

2019001102

3
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

Regarding claim 1, Complainant alleged that on unspecified dates, management allowed her co-
worker to determine who could receive overtime.

The Supervisor, Distribution Operations (Asian female, yellow, year of birth 1965) stated that
during the relevant period, she was Complainant’s supervisor. The supervisor denied
Complainant’s claim that the supervisor allowed her co-workers to determine who could receive
overtime, indicating she, as supervisor of the unit, controlled overtime assignments.

Regarding claim 2, Complainant asserted that on December 9, 2017, management allowed her
co-worker, in his capacity as Safety Captain, to take her chair and leave it in an unsafe condition.

The supervisor explained that the co-worker is a safety caption and “is allowed to go around the
unit at beginning tour to check for any unsafe condition.”

Another Supervisor, Distribution Operations (Asian male, yellow, year of birth 1975) stated that
the co-worker/Safety Captain was “just doing his job duties as safety captain to check chair
quality, but I assumed he forgot to turn the chair back to normal position after that, so I just told
[Acting Supervisor] to put the chair back to normal position and informed all employees that the
chair is safe to sit on.”

Regarding claim 3, Complainant asserted that on unspecified dates, management allowed her co-
worker to harass her on the workroom floor.

The supervisor denied subjecting Complainant to harassment. The supervisor further noted that
Complainant and co-worker/Safety Captain “did not get along and can’t work side by side
period.” The supervisor stated that when Complainant expressed her concerns about working in
a hostile work environment, she had Complainant and co-worker in her office with the union and
Manager, Distribution Operations. The supervisor stated that during the meeting, Complainant
and co-worker “both agreed not to say anything to each other unless there is work related and
any issue must report to Supervisor.”

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of
record does not establish that discrimination occurred.3

3 On appeal, Complainant does not challenge the July 16, 2018 partial dismissal issued by the
agency regarding one other claim (that she was discriminated against on the bases of race, sex,
color, and age when on unspecified dates, management allowed her coworker to act as an
2019001102

4

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).

advocate for the union without being certified). Therefore, we have not addressed this issue in
our decision.

2019001102

5
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

March 5, 2019
Date