Erika H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 11, 2018

0120160160 (E.E.O.C. Jan. 11, 2018)

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

Erika H.,1
Complainant,

v.

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

Appeal No. 0120160160

Hearing No. 470-2015-00049X

Agency No. 4C-400-0037-14

DECISION

On September 29, 2015, 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
September 21, 2015, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Sales and
Services Associate at the Versailles Post Office in Versailles, Kentucky. On June 7, 2014,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American), sex (female), age (53), and reprisal (prior protected EEO
activity) when: (1) on March 12, 2014, she was placed on Emergency Placement-Off Duty

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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Status; and (2) on March 7 and 20, 2014, she was subjected to Pre-Disciplinary Interviews (PDI)
with a subsequent 14-Day Suspension issued on April 21, 2014 and dated April 19, 2014.2

After 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). Complainant timely requested a hearing but subsequently withdrew her request.
Consequently, 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.

FACTUAL BACKGROUND

Emergency Placement – Off Duty Status

The Postmaster (P1) states that on March 12, 2014, she was attempting to give Complainant
instructions on handling a check received by mail from a customer who was extending their
premium forwarding. P1 also explains that this situation had occurred the year before and had
caused accounting issues which she wanted to avoid by making sure the check was deposited
into the correct account. P1 also asserts that Complainant would not let her explain or give
instructions and began talking over her. P1 states that she instructed Complainant to stop and
listen but Complainant continued stating “you cannot look at me like this.” P1 also states that
Complainant went on to say that P1 had an evil look and was baring her teeth at her. P1 asserts
that Complainant refused to let her speak and considering Complainant’s demeanor and her
recent history of being placed on Emergency Placement on December 23, 2013, for the same
behavior, she had no option but to place Complainant off work on Emergency Placement Off-
Duty Status.

Pre-Disciplinary Interviews – 14-Day Suspension

The record shows that on April 19, 2014, Complainant was issued a 14-Day Suspension based on
four events. With respect to the first event, the record shows that one of the Window Clerks (C1)
called P1 to the front saying a customer needed to speak with her. P1 explains that she began
speaking with a male customer who was approximately 80 years old, was wearing hearing aids
and was walking with a cane. The customer had approached C1 with an issue involving a
change of address. P1 states she was told Complainant overheard the conversation and became
involved in a dispute with the customer escalating into Complainant calling the police.

P1 states she was unaware of this during her conversation with the customer and she had settled
the issue when the police arrived and literally walked the man out of the building. P1 asserts that

2 We agree with the Agency’s dismissal of an additional claim of discrimination (that on
December 23, 2013, Complainant was sent home) because it was raised beyond the 45-day time
limit pursuant to 29 C.F.R. § 1614.107(a)(2).

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Complainant claimed that the customer once made an unsolicited sexual advance toward her and
she felt threatened by him. P1 further states that at no time did Complainant attempt to contact a
manager, but rather she allowed the customer to remain in the lobby with other customers and
stayed at the counter herself waiting on other customers. P1 notes Agency policy states that
when faced with a threat, from another employee or a customer, employees are to immediately
notify management to assess the situation. P1 further states that when questioned, Complainant
stated she felt no need to notify management and would do nothing different if this situation
reccurred.

The second event cited in the 14-Day Suspension occurred on March 6, 2014. Complainant’s
supervisor (S1) found a tub of outgoing mail that was left from the previous day. S1 concluded
that Complainant failed to perform the PM Clearance the night before by ensuring that all the
mail was dispatched. The third event cited in the 14-Day Suspension occurred on March 12,
2014. According to S1, while working at the retail counter Complainant made inciting remarks
about the Catholic religion when she was speaking to a customer. Complainant stated that the
Catholic religion had “pagan rituals” in their religious practices. S1 also asserts that
Complainant was aware that C1, who was working beside Complainant at the time, is a Roman
Catholic. C1 informed management of this encounter and stated this made her feel extremely
uncomfortable. The fourth event citied in the 14-Day Suspension pertains to the events cited in
Claim 1.

The record shows that prior to the issuance of the 14-Day Suspension, S1 conducted PDIs on
March 7 and 20, 2014 to allow Complainant to address the allegations in the 14-Day Suspension.
S1 explains that the lapse in time was due to the inability of getting a union representative there
to follow up on the interviews. S1 explains that successive PDIs were not given to “stack
discipline” but to combine all the issues into one.

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”).

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
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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).

We agree with the Agency and find that Complainant failed to present sufficient evidence that
the Agency’s legitimate, non-discriminatory/retaliatory explanations for its actions were a
pretext or motivated by discriminatory/retaliatory animus. We find that aside from
Complainant’s bare, uncorroborated assertions, the record is devoid of evidence of
discriminatory or retaliatory animus. We also note that the record is devoid of evidence that
Complainant was treated less favorably than similarly situated comparison employees who fall
outside her protected classifications. Finally, we note that Complainant does not raise any
argument in support of her appeal.

CONCLUSION

Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final decision
finding that Complainant failed to prove her claims as alleged.

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.
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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.
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 11, 2018
Date