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

Equal Employment Opportunity Commission

Mar 13, 2019

2019000130 (E.E.O.C. Mar. 13, 2019)

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

Mozella M.,1
Complainant,

v.

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

Appeal No. 2019000130

Hearing No. 410-2015-00335X

Agency No. 4G-320-0084-15

DECISION

On August 20, 2018, 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
July 19, 2018, final order 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. 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 Sales and Service Distribution Associate for
the Agency in Arlington, Georgia.

On June 11, 2015, Complainant filed a formal complaint alleging that the Agency discriminated
against her, based on race (African-American) and age (54) when:

1. on or around February 17, 2015, Complainant was terminated.

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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After an 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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ issued a decision without a hearing on July 10, 2018.

In reaching this decision, the AJ found the following undisputed facts were established during
the investigation of the complaint.

Complainant was a probationary, career Part-time-Flexible Sales, Services, and Distribution
Associate at the Arlington Post Office in Arlington Georgia. On January 10, 2015, Complainant
was converted to career employment and required to serve a 90-day probationary period.
Complainant was a member of the American Postal Workers' Union ("APWU"). The APWU and
the Agency have several collective bargaining agreements, providing in pertinent part that an
employee may be removed during the probationary period for failing to truthfully complete the
employment application.

On June 26, 2014, Complainant had completed an employment application for the Agency. The
employment application had a question relating to an applicant's criminal history. The question
stated as follows:

Have you ever been convicted of a crime? … All felony and misdemeanor
convictions and all convictions in state and federal courts are criminal convictions
and must be disclosed. Disclosure of such convictions is required even if you did
not spend any time in jail and/or were not required to pay a fine.

Complainant responded to this question by selecting "no". Complainant digitally signed the
application certifying the following:

I certify that all the statements made in this application are true, complete, and
correct to the best of my knowledge and belief and are in good faith. A false or
dishonest answer to any question in this application may be grounds for not
employing you or for dismissing you after you begin work and may be punishable
by fine or imprisonment (US Code, Title 18, Sec. 1001). All information you give
will be considered in reviewing your application and is subject to investigation.

On August 21, 2014, Complainant re-certified the above statement by signing the statement in
person. A post-employment background check uncovered that Complainant failed to disclose
numerous criminal convictions in both Florida and Georgia. The convictions occurred in 1979,
1984, 1988, and 2004.

On February 17, 2015, the Officer-In-Charge (Caucasian, over 40) notified Complainant of her
termination during her probationary period pursuant to Article 12.1. B for failing to provide true
and honest statements on her employment application.

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On July 19, 2018, the Agency issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed. On appeal, Complainant argued that there were clear issues with the
AJ’s decision. Complainant notes that at one point the AJ erroneously stated that Complainant
alleged discrimination based on her race and sex, when it was her race and age. Complainant also
notes that the AJ erroneously cited charges and convictions that had been dropped. However, she
notes that she is not disputing that she was a probationary employee, or that she answered the
criminal convictions questions incorrectly. Complainant asserts that she never intentionally
provided false or dishonest answers though. Complainant contends that the AJ relied solely on
the Agency’s conclusions. Additionally, Complainant argues that the Record of Investigation
was flawed, incomplete, and that additional discovery is warranted.

ANALYSIS AND FINDINGS

Summary Judgment

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The
U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment a court does not sit as a fact finder. Id. The evidence
of the nonmoving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the nonmoving party's favor. Id. A disputed 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. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding under Title VII, an
AJ may properly consider summary judgment only upon a determination that the record has been
adequately developed for summary disposition.

In order 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. Here,
Complainant has failed, either at the hearing stage or on appeal, to point to any particular
evidence in the investigative file or other evidence of record that indicates such a dispute.
Therefore, we find no error in the AJ’s decision to adjudicate this case without a hearing.

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Disparate Treatment

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, he
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. 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).

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).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its action. Here,
Complainant understood she had the responsibility to answer truthfully on her application. On
appeal, Complainant asserts that she never intended to mislead the Agency. Complainant argues
that the convictions were dropped and therefore she should not have had to disclose the
convictions. The application, however, specifically asks applicants to list all convictions whether
time was served and/or fines were paid. Complainant failed to answer the questions truthfully
and was terminated during her probationary period.

Here, as detailed by the record and in the AJ’s well-reasoned decision, the record supports the
AJ’s determination that the Agency’s proffered reasons regarding the termination were
legitimate and non-discriminatory. Complainant did not provide persuasive arguments, below or
on appeal, that the Agency’s actions were pretext for discrimination or unlawful retaliation.

Finally, in response to Complainant’s assertions that the AJ’s decision was inherently flawed
because the AJ stated the accepted basis of discrimination was race and sex, when it was actually
race and age. We note the decision only made that mistaken reference in one area, and the rest of
the AJ’s decision appropriately discussed Complainant’s claims of race and age discrimination.

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Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’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.
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.
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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. re
Carlton M. Hadden, Director
Office of Federal Operations

March 13, 2019
Date