Evelina M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jan 9, 2018

0120160193 (E.E.O.C. Jan. 9, 2018)

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

Evelina M.,1
Complainant,

v.

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

Appeal No. 0120160193

Agency No. 4E-995-0012-14

DECISION

On September 25, 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 17, 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. 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 Sales and Services
Distribution Associate at the Cold Bay, Alaska Post Office. On August 7, 2014, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of race
(Maori-Pacific Islander), national origin (New Zealand), color (light brown), and in reprisal for
prior protected EEO activity when:

1. the Postmaster subjected her to a written examination;

2. the Postmaster rated her unsatisfactory on every factor in her 60-day evaluation
report; and

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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3. the Postmaster terminated her employment.

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, 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.

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”).

Disparate Treatment Discrimination

To prevail in a disparate treatment claim, 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). 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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); Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the
Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Claim #1 (Written Examination)

The Agency explains that Complainant, a probationary employee, was required to take an
examination because she frequently made errors in the course of performing her duties. The
purpose of the examination was to determine the extent of her job skills. ROI at 98. This is a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not dispute the
Agency’s explanation for its action. Indeed, she impliedly concedes the truth of the Agency’s
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explanation, seeking to blame her continuing performance failures on the Agency’s lack of
“constructive measures” to correct them. ROI at 60. Complainant has failed to prove that the
Agency’s reasons for its action was a pretext designed to conceal discriminatory animus.

Claim #2 (“Unsatisfactory” Rating)

According to the Agency, Complainant received the rating of “unsatisfactory” in all categories
on her 60-day evaluation because she consistently committed errors in performing her duties and
because she reacted argumentatively when the errors were pointed out to her. ROI at 130. This
is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant partially
concedes the accuracy of the Agency’s explanation for its action. ROI at 65. She adduces no
evidence to refute any part of it. Complainant has failed to prove that the Agency’s reasons for
its action was a pretext designed to conceal discriminatory animus.

Claim #3 (Termination of Employment)

The Agency decided to terminate Complainant’s employment because of unsatisfactory
performance and a disrespectful attitude during her probationary period.2 This is a legitimate,
nondiscriminatory reason for the Agency’s action. Complainant does not dispute the Agency’s
explanation for its action. ROI at 67. Complainant has failed to prove that the Agency’s reasons
for its action was a pretext designed to conceal discriminatory animus.

Hostile Workplace Harassment

It is well-settled that harassment based on an individual’s statutorily protected bases is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected
classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to
her membership in those classes or her prior EEO activity; (3) the harassment complained of was
based on those classes or that activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must
fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept.
21, 2000).

2 Because the termination paperwork was improperly filled out, Complainant ultimately was not
removed from her position. ROI at 32.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding no
discrimination.

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.
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).

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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 9, 2018
Date