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

Equal Employment Opportunity Commission

Sep 30, 2019

2019001883 (E.E.O.C. Sep. 30, 2019)

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

Stephanie P.,1
Complainant,

v.

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

Appeal No. 2019001883

Agency No. 4G-335-0113-18

DECISION

On November 8, 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
October 17, 2018, final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant was discriminated against based on her race, age, and sex when her
supervisor charged her as absent without leave (AWOL) for 0.91 units (0.91 hours) on March 13,
2018.2

BACKGROUND

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 Complainant stated the date of the incident was March 15, 2018. The record clarifies that the
date of the incident was March 13, 2018.
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At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee (PSE), P4-06, at the Agency’s Winter Haven Post Office in Winter Haven, Florida.

On May 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), and age (53) when, on March
13, 2018, Complainant’s supervisor (S1) charged her with 0.91 units of AWOL when she did not
return to work.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant alleges that S1 treats black/African-American employees far less
favorably than other employees. To further evidence this allegation, Complainant submitted a
statement from another Agency employee regarding that individual’s experiences with S1.

ANALYSIS AND FINDINGS

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 (EEO MD-110), at Chapter 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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
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The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, sex, and age, we find that the Agency articulated a legitimate, non-discriminatory reason
for charging Complainant 0.91 units of AWOL. Complainant, as a PSE, provides support
operations based on budget and operational needs. S1 stated that Complainant left work prior to
her lunch break for what Complainant claimed was an appointment. S1 instructed Complainant
to instead take her break at 12:00 p.m. and to return to work until 2:30 p.m., due to the closing
clerk calling out and the Agency’s need for coverage. Complainant did not return to work, and
S1 subsequently charged Complainant 0.91 units of AWOL. However, S1 stated that he should
have charged her with more than 0.91 units of AWOL, but only charged Complainant with 0.91
units of AWOL because the 0.91 units made for an eight (8) hour shift. The Agency further
explains that Complainant was still in the ten (10) hour window of working and twelve (12)
hours total time window, which is why S1 instructed Complainant to take her lunch break and
return to work after lunch.

On appeal, Complainant argues, as she did before, that she was subjected to discriminatory
treatment based on her race, age, and sex when S1 charged her 0.91 units of AWOL. We find
that Complainant has not established that the Agency’s articulated legitimate, nondiscriminatory
reason for its actions is a pretext. The individuals identified by Complainant as having been
subject to more favorable treatment were within at least one of Complainant’s protected classes,
and were under the supervision of someone other than S1. Additionally, each of the comparators
held different positions that that of Complainant. Complainant did not demonstrate that she was
treated less favorably than those individuals. The Commission has long held that an Agency has
broad discretion to set policies and carry out personnel decisions and should not be second-
guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC
Request No. 05940906 (January 16, 1997). We find no evidence of unlawful motivation on the
instant facts.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not established that she was
subjected to discrimination as alleged, and the FAD is AFFIRMED.

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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. 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.
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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 30, 2019
Date