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

Equal Employment Opportunity Commission

Sep 25, 2019

2019001639 (E.E.O.C. Sep. 25, 2019)

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

Rosanne H.,1
Complainant,

v.

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

Appeal No. 2019001639

Hearing No. 460-2018-00111X

Agency No. 4G-770-0054-17

DECISION

On November 28, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 1, 2018 final action 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.

BACKGROUND

During the period at issue, Complainant worked as a Sales/Service Distribution Associate at the
Agency’s Warren, Texas Post Office.

On March 14, 2017, Complainant filed a formal EEO complaint alleging the Agency unlawfully
retaliated against her for prior EEO activity when, on November 18, 2016, she was issued a
Notice of Removal.

After an investigation of the complaint, the Agency provided Complainant with a copy of the
investigative file, and Complainant requested a hearing before an EEOC Administrative Judge
(AJ).

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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Thereafter, the Agency submitted a Motion for Findings of Fact and Conclusions of Law
Without a Hearing. Complainant responded to the motion. On October 24, 2018, the AJ issued
a decision by summary judgment in favor of the Agency. The Agency issued its final action,
adopting the AJ’s decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party 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 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).

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts.
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On August 22, 2016, Complainant and a contract carrier had a conversation with the Postmaster.
During the conversation, Complainant became loud, called the Postmaster derogatory names and
stormed out of the facility. As a result of the incident, on September 6, 2016, Complainant, her
union representative, the Postmaster of the Warren Post Office, and the Postmaster of the
Agency’s Village Mills Post Office had a meeting. The purpose of the meeting was to inquire if
Complainant wanted to work at the Village Mills Post Office due to the animosity between
Complainant and her Postmaster. However, during the meeting, Complainant called the
Postmaster of the Village Mills Post Office “crazy” and stated she did not want to work there.
Complainant then threw papers across the room, yelled and cursed.

Based on Complainant’s conduct, effective September 9, 2016, Complainant was placed off the
clock on emergency placement. Subsequently, on September 9, 2016, Complainant filed a
grievance concerning her emergency placement. On October 3, 2016, Complainant was issued a
removal letter based on her unacceptable conduct. On the same day, October 3, 2016,
Complainant filed a second grievance concerning the removal letter.2

On November 18, 2016, Complainant was terminated from Agency employment for
unacceptable conduct. The AJ also noted that in addition to Complainant’s unacceptable conduct
and behavior, the removal was also based on Complainant’s interference with the filling of a
vacant contract route at the Warren Post Office, she made inappropriate contact with the contract
carrier office, and she made disparaging comments to a supplier who called the office inquiring
about an upcoming vacant route.

The AJ determined that because Complainant’s two grievances were filed after she was placed
on emergency placement on September 9, 2016 and issued the October 3, 2016 removal letter,
the Agency’s action was not based on the grievance activity. The AJ further stated although
Complainant “does not agree the resultant consequences – emergency placement and subsequent
removal, Complainant does not deny or dispute her conduct and behavior. Accordingly,
Complainant cannot provide preponderant evidence that the Agency’s legitimate non-retaliatory
reasons for its action were false or pretextual.”

The Postmaster of the Warren Post Office was the deciding official to issue Complainant the
Notice of Removal dated October 3, 2016. The record contains a copy of the October 3, 2016
Notice of Removal. Therein, the Postmaster stated that on September 8, 2016, Complainant
demonstrated unacceptable conduct toward her during a meeting by throwing items from the
table to the floor and using profanity, and on August 22, 2016, acting outside of her official
capacity and authority as a Sales Associate, Complainant attempted to influence the awarding of
an emergency contract for a certain route.

2 The record reflects that Complainant’s two grievances were settled, and she was returned to
work with back pay.
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The Postmaster further stated that on September 13, 2016, she conducted an investigative
interview with Complainant and her union representative. She noted that Complainant indicated
she was aware of the Agency’s Zero Tolerance Policy and was aware that she should treat the
Postmaster with dignity and respect “however, when asked if you understood your behavior was
threatening you stated, ‘No, I do not.’” The Postmaster found Complainant’s comments were
not acceptable as an explanation of her actions.

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions – that
Complainant was terminated due to unacceptable conduct. Complainant did not prove, by a
preponderance of the evidence, that these proffered reasons were a pretext designed to mask
retaliatory animus.

We AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment,
finding no unlawful retaliation was established.

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.
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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

September 25, 2019
Date