Alline B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jan 6, 2016

0120142867 (E.E.O.C. Jan. 6, 2016)

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

Alline B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142867

Agency No. 4F-926-0256-13

DECISION

Complainant filed an appeal from the Agency’s July 23, 2014 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. The Commission deems the appeal timely and accepts it for de novo review
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

Complainant worked as a Probationary Postal Support Employee Clerk at the Main Post Office
in La Habra, California. On December 20, 2013, she filed an EEO complaint in which she
alleged that the Customer Service Supervisor (S1) and the Customer Service Manager (S2)
discriminated against her on the bases of race (African-American), sex (female), and color
(Black) by terminating her probationary employment on September 5, 2013. At the conclusion
of the ensuing investigation, the Agency notified Complainant of her right to request a hearing
before an Equal Employment Opportunity Commission 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.

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.
0120142867

2
A PS-Form 50 dated September 5, 2013, indicates that Complainant was terminated during her
probationary period for insubordinate conduct toward her supervisor, S1. Complainant was
arguing with S1 regarding her lunch break in front of customers. Investigative Report (IR)
111, 114-15. S2 concurred in the decision to end Complainant’s probationary employment.
93-94. When asked by the investigator why she believed that her race, color and sex were
factors in her removal, Complainant replied that S2 made her work for twelve hours and then
penalized her for doing so, and that she was the only dark-skinned person working at the
window. IR 78-79. She averred that S1 constantly yelled at her and another Black Clerk to
stop talking but did not yell at two White females and an Asian male. IR 79. S2 testified that,
unlike Complainant, the comparative employees were not wasting time or otherwise
unproductive. IR 95-96. In addition, Complainant submitted a grievance report and
handwritten statements from other employees that S1 had yelled at Complainant on August 19
and August 21, 2013. IR 85, 89-90.2

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving the removal of
personnel unless there is evidence of a discriminatory motivation on the part of the officials
responsible for those decisions. See Texas Department of Community. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to prevail on her claim of race, color, and sex
discrimination, Complainant would have to prove, by a preponderance of the evidence, that S1
or S2 were motivated by unlawful considerations of her race, skin color, or gender in
connection with their decision to fire her. See Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can prove the existence of an
unlawful motivation by showing that S1’s and S2’s articulated reason for terminating her are
pretextual. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450
U.S. at 253. Evidence of pretext includes discriminatory statements or past personal treatment
attributable to S1 or S2, comparative or statistical data showing differences in treatment across
racial, color, or gender lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No.
0120141697 (November 12, 2015).

Complainant’s entire claim appears to rest on the notion that the acts complained of are
themselves sufficient to establish motive. This is simply not true. The statutes the
Commission enforces cannot protect employees from negative behavior or adverse decisions on
the part of management unless that behavior or those decisions are rooted in expressly
proscribed considerations, in this case, Complainant’s race, color, or sex. And on this crucial
issue, Complainant has not presented any sworn statements from other witnesses or documents

2S1 did not prepare or submit an affidavit or sworn declaration to the EEO Investigator. IR
102-07.
0120142867

3
that contradict S2’s explanation for Complainant’s probationary termination or which call her
veracity into question. In particular, we note that while the various handwritten witness
statements tend to show that that there was friction in the relationship between Complainant
and S1 during the weeks leading up to the termination, none of these witnesses reported
observing any of the above-listed indicators of pretext on the part of S1 or S2. We therefore
agree with the Agency that Complainant failed to establish her termination during her
probationary period was, in any way, motivated by unlawful considerations of her race, color
or sex on the part of S1 or S2.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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).

0120142867

4
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

January 6, 2016
Date