0120150293
03-06-2017
Pearl B.,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
Pearl B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150293
Hearing No. 443-2012-00075X
Agency No. 4-J-530-0021-11
DECISION
On October 21, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 18, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ's) finding that Complainant did not establish race and sex discrimination as alleged is supported by substantial evidence.
BACKGROUND
During the period at issue, Complainant worked as a Sales Service Distribution Associate (SSA) at the Agency's Wauwatosa Branch of the Milwaukee Post Office and a Mail Processing Clerk at the Agency's Milwaukee Processing and Distribution Center (P&DC) both located in Wisconsin.2
On March 31, 2011, Complainant filed an EEO complaint alleging discrimination on the basis of race (African-American) and sex (female) when: (1) on December 6, 2010, she was issued a seven-day suspension for failure to follow instructions; (2) on December 22, 2010, she was charged with being absent without official leave (AWOL); and (3) on January 19, 2011, she was issued a letter of demand because her cash drawer was short. After her reassignment to the Milwaukee P&DC, Complainant filed another complaint on the same bases alleging discrimination when: (4) on May 27, 2011, she was issued a 14-day suspension for failure to follow instructions; and (5) on August 19, 2011, she was issued a notice of removal effective September 23, 2011, for failure to follow instructions. Both complaints were accepted for investigation and later consolidated for further processing.3
At the conclusion of the investigations, the Agency provided Complainant with a copy of each report of investigation (ROI) and notice of her right to request a hearing before an Administrative Judge or alternatively a final agency decision. Complainant requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to an Administrative Judge. The AJ held a hearing on February 6, 2014 and March 6, 2014. On September 9, 2014, the AJ issued a decision in which she found no discrimination as to all issues raised in the underlying complaints. On September 18, the Agency adopted fully the AJ's findings. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
Complainant submitted no contentions on appeal. For its part, the Agency requests that the Commission affirms its adoption of the AJ's appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of race and sex.
We now look to see whether the Agency stated legitimate, nondiscriminatory reasons for its actions. In this regard, the AJ found the following relevant facts. Regarding allegation (1), the AJ found that the Agency stated that Complainant was given a seven-day suspension because she failed to ask customers a required question.4 The AJ noted that the evidentiary record indicated that the Agency also disciplined two other employees outside Complainant's protected classes for the same infraction.
Regarding allegation (2), concerning the AWOL claim, the AJ found that the Agency stated that the AWOL charge was a mistake and should have been coded as administrative leave instead. S1 stated that she filled out a Form 3971 to correct the mistake and that Complainant, upon her own admission, stated she was never disciplined for the AWOL. The AJ clarified that Complainant's concern was that the AWOL continued to appear on her attendance record. The AJ noted that the record was unclear as to whether the AWOL was ever removed from the Agency's TACS system but that it should have been. The AJ further noted that a copy of S1's completed Form 3971 was in the record. See ROI at 53.
As to allegation (3), the Letter of Demand, the Agency stated that Complainant's cash drawer presented a $7.18 shortfall. The Agency's system automatically generated a Letter of Demand whenever the difference was greater than $5.00, as it is instructed to do whenever an employee's cash drawer falls short.5
Regarding allegation (4), the first allegation Complainant alleged to be discriminatory after she was reassigned to the P&DC, Complainant's acting first-line supervisor (AS1) noticed that Complainant often clocked in past her start time and clocked out past her end time. The AJ found that each time Complainant clocked out late, AS1 told her that this practice was not allowed and informed her that she would have to use leave to cover any lost time for reporting to work late.
The AJ further found that on May 20, 2011, after several warnings, Complainant clocked in seven minutes late and clocked out seven minutes late. Because AS1 was not Complainant's supervisor, he could not issue discipline so he reported the matter to Complainant's first-line supervisor (S01), who requested a meeting with Complainant to discuss the issue. According to S01, he requested that the next progressive disciplinary step be taken and Labor Relations determined that such discipline should be a 14-day suspension, which was issued to Complainant on May 27, 2011.6
As to allegation (5), the Agency's policy regarding cell phones was that, in relevant part, employees were permitted to use cell phones to play music so long as the process of setting up the music did not take a long time and they put their phones away for the remainder of the day. The AJ found that on August 9, 2011, the Acting Supervisor, Distribution Operations (ASDO) observed Complainant manipulating her cell phone past the time when her music should already have been set. He informed Complainant, in the presence of a Union Official, that this practice was not allowed. The AJ found credible SDO's statement that after the meeting with Complainant and the Union Official, he observed Complainant manipulating her phone five or six more times throughout the day. ASDO thereafter notified the Supervisor, Distribution Operations (SDO) of Complainant's failure to follow instruction and Labor Relations was prompted to issue the next step of progressive discipline, which was a Notice of Removal issued on August 19, 2011.7 The AJ found that the Agency stated legitimate nondiscriminatory reasons for the actions alleged to be discriminatory.
In the final step of a disparate treatment analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's explanations are unworthy of credence and that its actions were influenced by impermissible criteria, i.e., animus toward her because of race and sex.
The AJ found that Complainant attempted to do this by stating that other employees failed to ask a required question regarding allegation (1), other employees clocked in late and clocked out late regarding allegation (4), and other employees repeatedly manipulated their phones regarding allegation (5). The AJ found, however, that other employees outside of Complainant's protected classes were also disciplined for failing to ask customers a required question; the employees who clocked in late and clocked out late were not similarly situated as they performed jobs very different than Complainant's; and that the one employee observed using her laptop (not a cell phone) on the workroom floor was disciplined as well. Like the AJ, we find that Complainant did not meet her burden to show pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's finding that Complainant did not establish discrimination based on race and sex is supported by substantial evidence. Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
__3/6/17________________
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.
2 After Complainant's SSA position was abolished in March 2011, she was transferred to her position in the P&DC.
3 The Agency initially dismissed the first three allegations on procedural grounds, which Complainant appealed to the Commission. The Commission found in Complainant's favor and ordered the Agency to accept the allegations for investigation. See EEOC Appeal 0120113061 (Nov. 21, 2011).
4 Complainant filed a grievance which resulted in the seven-day suspension being rescinded because her first-line supervisor (S1) failed to notify her of her right to file a grievance within 14 days.
5 Complainant filed a grievance and both parties agreed to settle the matter if Complainant repaid half the shortfall amount.
6 S01 was not aware of Complainant's prior disciplinary history.
7 Complainant filed a grievance, which resulted in a reduction of the Notice of Removal to a No-Time Served Notice of Suspension.
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