Chau O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 21, 2017

0120150329 (E.E.O.C. Mar. 21, 2017)

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

Chau O.,1
Complainant,

v.

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

Appeal No. 0120150329

Agency No. 1F-901-0023-14

DECISION

The Commission accepts Complainant’s appeal from the October 7, 2014, final Agency
decision (FAD) 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s LAX International Service Center in Los Angeles, California. On
September 6, 2013, Complainant began her tour without prior authorization at 3:04 a.m. rather
than her scheduled start time at 4:00 a.m. Additionally, Complainant requested and was
approved to leave early at 9:00 a.m. instead of her scheduled end tour time of 12:30 p.m. At
approximately 9:05 a.m., the International Service Center Manager (M1) and the
Transportation Networks Manager (M2) saw Complainant in an unauthorized area having her
hair braids taken down by another employee. The area was a former break room which was in
the process of being renovated, with one side used for storage. Complainant was observed in
the caged-in area being used for storage.

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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On September 25, 2013, Complainant’s supervisor (S1) held an investigative interview with
Complainant. During the interview, Complainant acknowledged that she clocked in prior to
the start of her scheduled start time; she did not take a lunch that day; she clocked out at 9:15
or 9:20 a.m.; and that when she was observed it was wash-up time because she was getting
ready to go home. Complainant claimed that she did not know that the area in which she was
found was unauthorized.

S1 determined that Complainant’s responses were unacceptable. S1 further determined that
Complainant did not clock out and leave promptly as she had requested; she admitted to having
her braids taken down when observed by managers; she began her tour outside of her
scheduled reporting time without authorization, which included not taking a scheduled lunch
break; and that she did not end her tour until 9:14 a.m., after she was observed by managers.
S1 determined that Complainant’s actions violated several sections of the Employee and Labor
Relations Manual and District procedures. Complainant’s prior disciplinary history included
two 14-day suspensions, a seven-day suspension, and a letter of warning. As a result, on
October 31, 2013, S1 issued Complainant a Notice of Removal for Unacceptable
Conduct/Failure to Follow Instructions and Failure to Remain Gainfully Employed. The
removal notice was later reduced to a 14-Day No Time-Off Suspension.

On April 19, 2014, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), religion
(Christian), color (Black), age (50), and in reprisal for prior protected EEO activity when on
October 31, 2013, she was issued a Notice of Removal.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. S1 stated that she issued the Notice of Removal for
Complainant’s violation of several policies and procedures. S1 explained that Complainant
reported to work early at 3:04 a.m. without authorization and requested to leave at 9:00 a.m.
for a doctor’s appointment. The request was granted. M1 advised S1 that she observed
Complainant having something done to her hair and wanted her to do an investigation because
employees should not be getting their hair done on the clock. Complainant’s clock rings
showed that she began her tour at 3:04 a.m. and ended her tour at 9:14 a.m. with no lunch
rings. S1 confirmed there were no signs posted in the storage area where Complainant was
found; however, it could be assumed since there were no table and chairs in that area that it
was not part of the break area. During the investigative interview, Complainant failed to give
acceptable responses about her actions. S1 asserted Complainant was issued the removal
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notice after consideration of her past disciplinary actions. The Lead Distribution Operations
Manager (M3) concurred with the issuance of the removal notice.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that management officials provided false statements and that
she is constantly being subjected to harassment and discrimination. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially 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. Corp. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, S1 confirmed that she issued
Complainant the Notice of Removal based on her early, unauthorized tour start time and M1
and M2’s observation of Complainant having her hair braids taken down during her tour in an
unauthorized area in violation of several Agency policies and procedures. ROI, at 85-86; Ex.
3. Complainant failed to provide an acceptable explanation for her actions during her
investigative interview. Id. at Exs. 3 and 5. As a result, S1 issued the Notice of Removal for
Unacceptable Conduct/Failure to Follow Instructions and Failure to Remain Gainfully
Employed. Id. at Ex. 3. S1 noted that the discipline was elevated after considering
Complainant’s disciplinary record. Id. at 87. M3 concurred in the issuance of the removal
notice. Id. at 96. The removal notice was later reduced to a 14-Day No Time-Off Suspension
following a pre-arbitration settlement agreement. ROI, Ex. 4.

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Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s protected classes were a factor in
any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real
reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant
failed to carry this burden. As a result, the Commission finds that Complainant has not
established that she was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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
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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

March 21, 2017
Date