Jaqueline L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

2019002092 (E.E.O.C. Sep. 27, 2019)

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

Jaqueline L.,1
Complainant,

v.

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

Appeal No. 2019002092

Hearing No. 430201900023X

Agency No. 4K280005718

DECISION

On February 6, 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
January 31, 2019, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the
Agency’s Marshville Post Office facility in Marshville North Carolina.

On March 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Caucasian), sex (female), and age (51)2 when:

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.

2 We note that Complainant withdrew her age claims during the investigation.
2019002092

2
1. on December 19, 2017 through March 21, 2018, Complainant was placed on
emergency placement in an off-duty status without pay; and

2. on March 13, 2018, Complainant received a Notice of Removal, dated March 9,
2018, for an unsafe work practice.

The investigation into the complaint developed evidence that reveals that Complainant was a
Caucasian female Rural Carrier. She reported to the Postmaster (African-American female),
who reported to the Post Office Operations Manager (Caucasian male) (RMO2).

The Agency had a policy in place for preventing roll-away vehicles that required employees to
shut off the vehicle engine and remove the keys before exiting the vehicle. In addition, the record
shows Agency management conducted several safety talks to employees on roll-away accidents,
and unattended vehicles, including one talk that had occurred on October 8, 2017. Complainant
was in attendance.

On December 18, 2017, at approximately 5:05 p.m., upon returning from delivering her route,
Complainant left her vehicle running outside the Post Office while she went inside the building.
Complainant admitted that she left her vehicle unattended outside the Post Office for ten
minutes, with the motor running, on December 18, 2017. The Postmaster, upon discovering the
matter, instructed Complainant to go outside and shut-off the vehicle. The Postmaster then
reported the incident to the RMO2.

Management had received numerous statements that others had observed that Complainant’s
vehicle had been left running on several other occasions. Complainant stated that she had been
experiencing mechanical problems and she believed that if she turned off her vehicle, it would
not start up again right away.

On March 9, 2018, the Postmaster issued Complainant a Notice of Removal, charging
Complainant with “Unsafe Work Practice.” On March 13, 2018, RMO2 concurred with the
decision. RMO2 testified that he never met Complainant in person, and he was unaware of
Complainant’s race.

In response, Complainant stated in her complaint and affidavit that, in December of 2014,
another employee (African-American male) engaged in the same conduct, but he was not
disciplined by the Postmaster. The record shows that, on one occasion, the comparator employee
locked his keys in a vehicle, while the engine was on. The comparator employee was suspended
and subsequently resigned. He had several other vehicle-related incidents, but they did not
involve leaving his Postal vehicle unattended, while the engine was running.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
2019002092

3
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and over Complainant's objections, issued a decision without a hearing on December 21, 2018.

The AJ found that the named individual was not a proper comparator because the circumstances
of his single incident were different. The comparator employee locked the keys in the vehicle on
one instance. Complainant admitted during the internal investigation that, in addition to the
incident in question, she had left the vehicle running in the past when she completed her routes.
The Agency’s investigation uncovered additional incidents when Complainant had done the
same.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

This appeal followed.

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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

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, 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, 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.

2019002092

4
Agency management proffered legitimate, non-discriminatory reasons for issuing the removal by
providing undisputed evidence that Complainant had violated well-known Agency safety rules
by leaving her delivery vehicle running while she left it and spent at least ten minutes in the Post
Office. Moreover, Complainant admitted when questioned that she had done the same on a
number of prior occasions.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and complainant must further establish that such facts are material under applicable
law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a
finding that the agency was motivated by discriminatory animus. Here, however, Complainant
has failed to establish such a dispute. Complainant’s only evidence to prove pretext was the
alleged more favorably treatment of an identified comparator. However, the undisputed
evidence of record fully supports the AJ’s determination that the comparator Complainant asserts
was more favorably treated was neither a valid comparator nor treated more favorably.

Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ
correctly determined that the entry of summary judgment was appropriate and that the evidence
did not establish that Complainant was discriminated against by the Agency as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

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 tends 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.
2019002092

5
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).
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.
2019002092

6
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 27, 2019
Date