Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Mar 9, 2015

0120132634 (E.E.O.C. Mar. 9, 2015)

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

,
Complainant,

v.

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

Appeal No. 0120132634

Hearing No. 450-2012-00102X

Agency No. 1G-754-0097-10

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s June 13, 2013 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. 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 final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s North Texas Processing and Distribution Center in Coppell, Texas.
Complainant held a bid job assignment in the Automation Unit; however, after she suffered on-
the-job injuries in 1998 and 2004, Complainant was given a limited duty assignment in the
Primary Manual Unit. Complainant had lifting, walking, and standing restrictions. In 2009,
the Agency created a “standby” room where limited duty employees would wait for work
assignments. Employees were paid for a full eight-hour day, and often sat for eight hours
waiting for assigned work. Complainant began reporting to the standby room after the Agency
ran out of adequate work within her restrictions.

In July 2010, the Agency underwent the National Reassessment Process (NRP), a nationwide
Agency initiative to provide updated and operationally necessary tasks for employees with
medical restrictions. Management officials reviewed employees’ medical documentation and
analyzed available work at the facility. Two NRP Specialists reviewed Complainant’s medical
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documentation and determined that no work was available within her restrictions at the facility.
The Specialists expanded the search to facilities within a 50-mile radius, but found no available
work within Complainant’s restrictions. As a result, on September 14, 2010, Complainant was
given an NRP Employee Leave Information Letter, Complete Day letter notifying her that the
Agency was unable to identify enough available necessary work within her medical restrictions
and that she should not report back for duty until notified.

On September 24, 2010, the Distribution Operations Supervisor (S1) requested that the
Operations Support Specialist (OSS) deactivate badges of employees who were sent home
through the NRP process. On October 6, 2010, the Customer Service Manager (M1) informed
S1 and OSS that the badges should be reactivated.

On October 6, 2010, 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 beginning September 14, 2010, Complainant was told there was no work available and
subsequently her badge was deactivated, due to the National Reassessment Process (NRP).1

On January 4, 2011, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(7) for failure to cooperate, arguing that Complainant failed to return the
requested affidavit despite a written warning in the affidavit packet sent to her that failure to
provide the affidavit could result in the dismissal of her complaint. Complainant appealed and,
in Complainant v. U.S. Postal Serv.

, EEOC Appeal No. 0120112681 (Oct. 12, 2011), the
Commission reversed the dismissal and remanded the complaint for further processing.
On October 28, 2011, the Agency accepted the remanded complaint and began processing it as
a mixed-case complaint. Complainant subsequently filed an appeal with the Merit Systems
Protection Board (MSPB). On November 22, 2011, the MSPB dismissed the appeal for lack
of jurisdiction. The Agency provided Complainant with a copy of the report of investigation
(ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ)
or a final Agency decision. Complainant timely requested a hearing, and the AJ held a hearing
on August 1, 2012, and issued a decision on June 4, 2013.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. In particular, the Agency presented evidence that Complainant, along
with all of the other limited duty employees, was evaluated through the nationwide NRP
process to determine if there was available, necessary work within her physical limitations.
Complainant, along with others, had been spending days in the “standby” room. The NRP
Specialists stated that they were tasked with evaluating Complainant, among others. They
inquired of offices within a 50-mile radius whether there was work available within

1 Complainant raised disability as a basis of discrimination; however, the Agency subsumed the
disability portion of this complaint into the McConnell et al., v. U.S. Postal Serv. (Agency
No. 4B-140-0062-06) class complaint.
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Complainant’s limitations, and received no positive responses. With regard to the deactivation
of the badges, the Agency presented evidence that a number of employees, of all races, both
sexes, and different ages, had their badges mistakenly deactivated. These badges were soon
reactivated.

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued that the NRP was mishandled. Complainant stated that she came to the
facility as a result of Hurricane Katrina, and was not wanted. Complainant claimed that the
facility kept the employees they wanted to keep, and let others go. The AJ concluded that,
other than these accusations, there was insufficient evidence from which to find that
Complainant was treated differently due to her race, sex or age. As a result, the AJ found that
Complainant had not been subjected to discrimination as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that management officials lied in their testimony.
Complainant argues that S1 made every effort to identify adequate work for one of her friends,
but not her. Complainant contends that S1’s testimony that everyone affected by the NRP had
their badge deactivated is not true. Complainant claims that Agency management kept the
badges deactivated for more than 10 days and against Agency policy. Accordingly,
Complainant requests that the Commission reverse the final order.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.403(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. Nat'l Labor Relations Bd., 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

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999)

ANALYSIS AND FINDINGS
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
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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). The
prima facie inquiry may be dispensed with where the Agency has 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). 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); Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
The Commission finds that the AJ's determination that the Agency articulated legitimate,
nondiscriminatory reasons for its actions is supported by substantial record evidence.
Specifically, Complainant had physical restrictions that prevented her from performing
operationally necessary tasks. ROI, at 211. The Agency began implementation of the NRP in
July 2010. Id. at 223. Under the NRP, the Agency determined that there was no available
work for Complainant within her restrictions at the facility or at facilities within a 50-mile
radius. Id

. at 226. As a result, on September 14, 2010, the Agency issued Complainant a
letter informing her that no work was available, and that she should not report back for duty
until notified. ROI, Ex. 2.
Finally, as to the badge deactivation claim, OSS testified that she initially asked the Security
Office to deactivate the badges of employees sent home under the NRP, including
Complainant’s. Hr’g Tr., at 123-25, 130. OSS affirmed that management erroneously thought
that deactivating the badges would be necessary for security reasons, but the badges were
reactivated on October 6, 2010, after learning of the error. ROI, at 264.

The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation was pretext for
discrimination. The record and facts gleaned at the hearing fail to disclose any evidence
purporting to show the Agency's actions were a result of discriminatory animus. As a result,
the Commission finds that Complainant was not subjected to discrimination 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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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).
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 9, 2015