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

Equal Employment Opportunity Commission

Apr 26, 2019

0120180683 (E.E.O.C. Apr. 26, 2019)

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

Lorriane L.,1
Complainant,

v.

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

Appeal No. 0120180683

Agency No. 4G700007517

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, from a November 2, 2017 Final Agency
Decision (“FAD”) concerning an 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 City Carrier at the
Agency’s Southfield Station in Shreveport, Louisiana.

On June 12, 2017, Complainant filed an EEO complaint alleging that she had been subjected to
discrimination by the Agency on the basis of sex (female) when:

1. On March 30, 2017, she was instructed to work on her nonscheduled (“NS”)
days, March 31, 2017 and April 1, 2017,2 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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2. On April 4, 2017, she was issued a Letter of Warning (“LOW”).

At the conclusion of its investigation, the Agency provided Complainant with a copy of the
report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an
EEOC Administrative Judge (“AJ”). Complainant opted for a FAD. In accordance with
Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

Throughout the relevant time frame, Complainant reported to two Supervisors, Customer
Service, EAS-17, (“S1” and “S2”), both male. Complainant identifies S1 as her first level
supervisor, although S2 was responsible for the LOW at issue in this complaint.

On Thursday, March 30, 2017, Complainant became aware that she had been scheduled to work
on Friday March 31st and Saturday April 1st, which were her nonscheduled (“NS”) days. She
immediately notified S1 that she would be out of town on those dates. Later that day, S1 told her
that he “had to ask her to work tomorrow [March 31, 2017].” Complainant told S1 again that she
would not be able to come in because she would be out of town.

On April 3, 2017, S1 conducted initial inquiry (“II”) with Complainant and her Union
Representative. On April 4, 2017, S2 met with Complainant and issued the LOW for failure to
follow instructions. Specifically, the LOW stated, “[y]ou were required to work Saturday April
1 and you did not show up for work at all, neither did you call in. Also on Thursday, March 30,
2017 [S1] told you that you were required to work Friday March 31, 2017, and you did not show
up to work on Friday March 31, 2017.”

The LOW also cites to the provisions in the Collective Bargaining Agreement (“CBA”) between
the Union and the Agency, the Employee and Labor Relations (“ELM”) and Handbook M-41
City Delivery Carriers Duties and Responsibilities that Complainant’s actions violated.
Complainant contends that her male colleagues are not subject to the same treatment, and that
“[S2] treats women like crap as if they don’t deserve to [work for] the Post Office.”

The FAD concluded that Complainant failed to prove that the Agency subjected him 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, (“EEO MD-110”) 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

2 The Complaint contains the allegation in Claim 2 only, however a fair reading of the record and
Complainant’s submissions indicates that she also alleges the act of scheduling and instructing
her to work on her NS day instead of her male colleagues was also discriminatory.
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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”).

No Credibility Determinations on FAD Appeals

Pursuant to 29 C.F.R. § 1614.108(b), an agency shall develop an impartial and appropriate
factual record upon which to make findings on the claims raised by the written complaint and
define an appropriate factual record as one that allows a reasonable fact finder to draw
conclusions as to whether discrimination occurred. However, the complainant is provided an
opportunity to cure defects in an investigation, after reviewing the report of invest notifying the
agency in writing) of any perceived deficiencies in the investigation or by requesting a hearing
before an AJ. EEO MD-110, at Ch. 6, § XI and Ch. 7, §I.

Complainant chose not to take advantage of the above-mentioned opportunities any defects in
the instant investigation. However, Complainant's October 8, 2017 statement accompanying her
FAD request and her appeal identify matters raised in the hearing context. For instance,
Complainant raises questions relating to the credibility of S2, which can only be determined by
an AJ during a hearing. She also references witnesses that were not identified in the record who
could support her complaint. If Complainant wanted an opportunity to develop the record
through discovery and cross examination of witnesses, she should have requested a hearing
before an AJ. We find that the Agency developed an impartial and appropriate factual record that
allows us to draw conclusions as to whether discrimination on the basis of sex occurred.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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
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evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

The Agency’s legitimate, nondiscriminatory reason for scheduling Complainant to work on her
NS days was that Complainant was on the Overtime Desired List (“OTDL”). The Agency’s
legitimate nondiscriminatory reason for issuing a LOW was failure to follow instructions.

Claim 1: Scheduled and Instructed to Work on NS Day

S2 repeatedly cites Complainant’s OTDL status as a reason for scheduling her and instructing
her to report to work on her NS day even after she explained she was going out of town.
Employees on the OTDL sign up each quarter, to work up to 12 hours of overtime per week,
with the option of working on their scheduled days and assignments only, or on scheduled and
NS days as needed by the station. We would accept OTDL status as a legitimate
nondiscriminatory reason, however, Complainant was not on the OTDL during the relevant time
frame. Complainant testifies that she had not been listed on the OTDL since December 2016,
and that she notified S1 and S2 that she was no longer on it. The Agency acknowledges that
Complainant’s name is not listed on the OTDLs provided for the record, which cover the first
and second quarters of 2017.

Complainant concedes that she failed to follow instructions by not reporting for work on her NS
day, but argues that the instructions were issued in a discriminatory manner and in violation of
the Collective Bargaining Agreement (“CBA”) between the Union and the Agency. She cites
Article 8.5 of the CBA, which states that in instances where the OTDL does not provide
sufficient coverage, “qualified full-time regular employees not on the list may be required to
work overtime…with the first opportunity assigned to the junior employee.” Complainant argues
that because she has the highest level of seniority in her unit, “before [S2] can force [her] to
work on [her] NS day, he must have those two junior carriers that he gave leave to after the
complements were met come in and work.”

Complainant discusses five male comparator employees (“C1,” “C2,” “C3,” “C4,” and “C5”)
who also worked as City Carriers in the Southfield Station and reported to S1 and S2. She
alleges that that S1 and S2 had been asking carriers all week to come in on their NS days,
specifically C1, C3, and C4, who all allegedly refused without repercussion. For instance, she
alleges C1, confirmed that when S2 asked him to work on his NS day, March 30, 2017 and he
told S2 no, “nothing happened.” Further, after refusing once, S2 did not come back to C1 and
instruct him to work on his NS day regardless of his plans. However, she does not establish that
this occurred for the days at issue, March 31 and April 1, 2017. C1, C3, and C4 reported to work
on March 31 and April 1, 2017. C5 did not work on March 31 but came in for 6 hours of
overtime on April 1, 2017.
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There is no explanation for why C5 was not also instructed to work on March 31, 2017, nor is
there any explanation for why Complainant specifically was instructed to work on her NS day
when she had highest seniority.

Claim 2: Letter of Warning (“LOW”)

For purposes of establishing pretext, comparative evidence relating to other employees is
considered relevant when they are “similarly situated.” See Anderson v. Dep’t of Treasury,
EEOC Appeal No. 01A22092 (Mar. 13, 2003). In other words, all relevant aspects of the
employees' work situation are identical or nearly identical, i.e., the employees report to the same
supervisor, perform the same job function, work during the same time periods, and, in instances
where the Agency is responding to “problem conduct” (e.g. attendance deficiencies), engaged in
the same conduct. See Stewart v. Dep’t of Defense, EEOC Appeal No. 01A02890 (Jun. 27,
2001); Jones v. United States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13, 2000); See
Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied,
EEOC Request No. 05A20020 (Dec. 28, 2002). This Commission has previously found that
another employee cannot be considered “similarly situated” to the complaint if the complainant
and the employee have different medical restrictions. See Kirkman v. United States Postal Serv.,
EEOC Appeal No. 01975352 (May 18, 2000).

For claims where the alleged discriminatory action is an agency’s response to “problem
conduct,” where the proffered “comparator's conduct was materially distinguishable from that of
complainant, he or she is not “similarly situated” to Complainant. See Grappone, supra.; see also
Complainant v. Dep’t of the Treasury (IRS), EEOC Appeal No. 0120132983 (Jun. 10, 2015)
(Affirming that the complainant failed to prove that a disciplinary action was issued in a
discriminatory manner when his proffered comparator received lighter disciplinary actions
because the complainant and his comparator did not commit similar infractions and their
infractions rendered two different findings.) Here, Complainant also alleges that male city
carriers who were scheduled on their days off and did not report to work were not disciplined.

The record indicates that C2 engaged in the same “problem conduct” as Complainant, yet was
not subject to a LOW. Specifically, C2 did not report to work on March 31, 2017 and April 1,
2017, and that he notified S2 beforehand that he would not be coming in. We are not convinced
by S2’s explanation, “[C2] may have called in sick but unlike [Complainant] did not fail to
report as scheduled.” Complainant contends that during the investigative interview (“II”) S1 told
her that C2 had the same reason for not reporting as Complainant. Moreover, S1 testified for the
record that S2 told him prior to March 31, 2017, that C2 would be off that weekend because he
had something going on. We find, for purposes of this analysis, C2 is an appropriate comparator
for Complainant, and S2 treated C2 more favorably than Complainant.

The Agency contends that S2 did not treat male employees more favorable based on March 3,
2017, LOW that he issued to C2 for engaging in the same “problem conduct” alleged in the
instant complaint, failure to report to work when scheduled on an NS day. However, that LOW
was based on different ELM violations, and issued for “Failure to be Regular in Attendance.”
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C2’s failure to report when scheduled for overtime on his NS day was listed as one of 8
“unscheduled absences” over a period of two months, not an incident of “failure to follow
instructions,” as stated in Complainant’s LOW. S2 testifies that he does not know of issuing
LOW to anyone else for “failure to follow instructions.” However, S2 testifies that it was his idea
to issue the LOW in Complainant’s case, and that there was no concurring official. As
Complainant’s direct supervisor, S1 testifies that he took no part in issuing the LOW, and he did
not suggest it.

Complainant has presented sufficient evidence to call the Agency’s legitimate nondiscriminatory
reasons into question. However after thorough review of the record, she has not established a
prima facie case for discrimination by a preponderance of the evidence. Specifically, she has not
shown discriminatory motivation. Complainant describes S2 as a “schoolyard bully” and alleges
that male employees are treated more favorably because S2 backs down when they stand up to
him. Yet, she also states that S1, who is male, was also subject to S2’s bullying, describing S1 as
“a totally different person when [S2] was not around, but [S2] would put [S1] up to doing his
dirty work because [S1] was new to the station.” For instance, according to Complainant, during
the April 3, 2017 II with her and her Union Representative, S1 “stated that [S2] is not fair with
several employees” including Complainant. We note that S1’s alleged statement is not specific to
the sex of those “several employees.”

New Allegations Raised on Appeal

We note that on appeal, Complainant alludes to an ongoing hostile work environment
perpetuated by S2, stating that she and “the women at this station under the leadership of [S2] are
discriminated against daily.” Complainant did not include these allegations or specific claims as
they pertain to her in her formal complaint, so they will not be adjudicated in this decision.

If Complainant wishes to pursue additional allegations of discrimination in an EEO complaint,
then she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. Hall v. United States
Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).

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 finding that Complainant did not prove
discrimination as alleged.

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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).
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.
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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

April 26, 2019
Date