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

Equal Employment Opportunity Commission

Sep 11, 2019

2019002281 (E.E.O.C. Sep. 11, 2019)

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

Deborah C.,1
Complainant,

v.

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

Appeal No. 2019002281

Agency No. 1G754005618

DECISION

On January 9, 2019, 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
December 19, 2018, final 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Parcel Post
Distribution Machine Clerk, PS-06, at the Agency’s North Texas Processing & Development
Center facility in Coppell, Texas.

On July 27, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of reprisal for prior protected EEO when, from March 2018 and ongoing,
Complainant has not been afforded the opportunity to detail into the Lead Clerk position.

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).

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.
2019002281

2
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.

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, 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”).

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination or reprisal, i.e., that a prohibited consideration was a factor in the
adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993);
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate,
nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54;
McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a
preponderance of the evidence that the agency's action was based on prohibited considerations of
discrimination or reprisal, that is, its articulated reason for its action was not its true reason but a
sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53;
McDonnell Douglas, 411 U.S. at 804.

This established order of analysis need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual
inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate
issue of whether complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination or reprisal. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find,
that complainant established her prima facie case of reprisal.

We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions
when the responsible Manager stated in his affidavit provided during the investigation that:
2019002281

3

[W]hen the need for a lead clerk was utilized [sic] complainant would be utilized.
There is no bid for a lead position in this section. Complainant has been given
opportunity and at times Complainant is not available. The APBS/SPSS
(Automated Parcel Bundle Sorting/ Small Parcel Sorting System) has EAS
supervisors that supervise these units and it was explained to the complainant.
The 204b (Supervisor) is utilized to substitute and assist in the priority operations
for the machine processing and scanning. Complainant had opportunity to bid on
a lead clerk position and she did not.

With regard to two specific occasions identified by Complainant as instances when she was not
used as a Lead Clerk during a supervisor’s absence, the Manager stated that other EAS
supervisors were available and were used instead.

The Agency having articulated legitimate, nondiscriminatory reasons for its action, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination or reprisal. See Hicks;
Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has
failed to meet this burden.

Complainant asserted that the only times she has been given the opportunity to work as a Lead
Clerk was when she was asked to do so by a management official other than the Manager.
Complainant further stated that instead of using her as a Lead Clerk when Complainant’s
supervisor is unavailable, the Manager uses a “non-career mail handler instead of me.”
Complainant maintains that to be a Lead Clerk:

[Y]ou are supposed to have done the job you are working in for at least a year.
Non-career employees should not have any job that a regular employee has
requested to do. Also Mail Handlers are not supposed to be supervising Clerks. . .
. Besides the fact that I have the experience and 30 years of service [with the
Agency] there is absolutely no reason anyone other than (Clerk) with more
seniority should be doing that job.

(Parentheses in original)

The Manager responded that Complainant did not have the required one year’s experience to be
a Lead Clerk or a 204b, and further maintained that the Mail Handler in question was a career
employee, was being used as a 204b, and had worked “in more areas” and thus had wider
experience than Complainant. Complainant on appeal disputes this, arguing that she had
abundant experience. We next note that the Manager averred that Complainant had the
opportunity to bid on a Lead Clerk position and did not do so. Complainant responded on appeal
that she did not bid on the position “for several reasons: a) I did not want a job on Tour 1; b) I
did not want a job in automation; c) I am not qualified to be a Lead Clerk in a job I have never
done before (i.e) [sic] 1 yr, experience.”
2019002281

4
Such a response does not support Complainant’s argument that the reason she was not used as a
Lead Clerk was because of reprisal. Finally, Complainant maintains that another coworker was
allowed to work higher level details, including “doing 204b-lead clerk work in my area,
APBS/SPSS and other areas” unlike Complainant. When asked to provide more information
about this employee, however, Complainant was unable to show that she was similarly situated
with her. Ultimately, we find that Complainant has not met her burden of establishing, by a
preponderance of the evidence, that she was subjected to reprisal, or that the Agency’s
articulated reasons for its actions are a pretext.

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 shown that reprisal occurred, and
we AFFIRM the FAD.

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.
2019002281

5
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 11, 2019
Date