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

Equal Employment Opportunity Commission

Feb 9, 2017

0120150171 (E.E.O.C. Feb. 9, 2017)

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

Ivelisse S.,1
Complainant,

v.

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

Appeal No. 0120150171

Hearing No. 532-2014-00015X

Agency No. 4C-450-0060-13

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 25, 2014, 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Letter
Carrier at the Agency’s Col-West Carrier Station in Columbus, Ohio. From October 2012
through January 2013, Complainant accumulated multiple instances of unscheduled absences.
On January 10, 2013, Complainant interrupted a Plan Five Talk being given by management
when she loudly complained about other employees failing to refuel her Postal vehicle.
Additionally, Complainant yelled at a supervisor and co-workers about trash in her vehicle,

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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abruptly left the meeting screaming obscenities, and then left the facility for the day without
permission.

On February 7, 2013, Complainant’s manager (M1) held a pre-disciplinary interview with
Complainant concerning her unscheduled absences and her conduct on January 10, 2013.
After Complainant left the interview, she confronted an acting supervisor (AS) about reporting
her for her conduct during the Plan Five talk. AS felt intimidated by Complainant’s behavior.
Additionally, Complainant approached another co-worker (CW1) and questioned him about
whether he felt threatened by her conduct during the Plan Five talk. CW1 indicated that he did
feel threatened and Complainant placed her hand in his face and stated “I knew it was you!”

On February 25, 2013, M1 issued Complainant a Seven-Day No Time-Off Suspension for
Unsatisfactory Attendance – Improper Conduct based upon her failure to maintain a regular
schedule, her conduct during the Plan Five talk, and her aggressive actions toward her co-
workers on February 7, 2013. The suspension was later reduced to a Letter of Warning.

On May 22, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), religion
(Pentecostal/Holiness), disability (unspecified), age (53), and in reprisal for prior protected
EEO activity when she received a Notice of Suspension of Seven Days dated February 25,
2013, for Unsatisfactory Attendance – Improper Conduct.

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). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on September 18, 2014.

In the decision, the AJ initially noted that Complainant failed to identify or present any
evidence regarding the nature of her disability aside from simply asserting that she “[has] a
medical condition that qualifies [her] under [the Americans with Disabilities Act.]”
Nonetheless, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Namely, Complainant amassed numerous
unscheduled absences resulting in a finding that she had failed to be regular in attendance.
Agency policy provided that employees may be disciplined for failing to be regular in
attendance. Additionally, Complainant displayed disruptive, intimidating, and unprofessional
behavior during a meeting in the presence of managers and supervisors. As a result,
Complainant was disciplined for both her absenteeism and inappropriate behavior.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or reprisal as alleged. The Agency subsequently issued a final order fully
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implementing the AJ’s decision. Complainant filed the instant appeal without submitting any
arguments or contentions in support.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

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).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that Complainant failed to present
evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. More
specifically, M1 explained that Complainant accumulated over eight instances of unscheduled
absences from October 29, 2012 through January 26, 2013. ROI, at 108, 135. Additionally,
several co-workers complained about Complainant’s disruptive outburst during a Plan Five
meeting. Id. at 69-75. Two co-workers reported that Complainant aggressively confronted
them and accused them of complaining about her behavior during the meeting. Id. at 71-72.
M1 held a pre-disciplinary interview with Complainant, and she failed to provide an acceptable
explanation for her failure to be regular in attendance or for her disruptive conduct. Id. at
135-41. As a result, M1 issued Complainant a Seven-Day No Time-Off Suspension for failure
to maintain a regular schedule and improper conduct. Id. at 142-44.

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
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(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.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant’s protected classes were a factor in any of the Agency's actions.
Complainant’s subjective belief that the Agency actions at issue were the result of
discrimination and reprisal is insufficient to prove pretext. 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 the Agency acted on the basis of
discriminatory or retaliatory animus. 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 order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence 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
received by mail within five days of the expiration of the applicable filing period. See 29
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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

February 9, 2017
Date