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

Equal Employment Opportunity Commission

Dec 11, 2018

0120171468 (E.E.O.C. Dec. 11, 2018)

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

Martha D.,1
Complainant,

v.

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

Appeal No. 0120171468

Hearing No. 490-2012-00221X

Agency No. 1C-374-0007-13

DECISION

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 February 14, 2017, 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 Title II of the Genetic Information Nondiscrimination Act of 2008, 42
U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove she was
subjected to unlawful discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Group Leader Mail
Handler at the Memphis, Tennessee Network and Distribution Center (NDC).

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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On February 14, 2013, Complainant filed an EEO complaint in which she alleged that the Agency
discriminated against her on the bases of sex (female), genetic information,2 and in reprisal for
prior protected EEO activity when:

1. Beginning on October 21, 2012, and continuing, she has not been permitted to work
her bid assignment duties; and

2. On or about May 9, 2013, she was denied a change of schedule.

In an affidavit statement, Complainant stated that she previously engaged in EEO activity when
she wrote a statement for another employee who filed an EEO complaint. Regarding claim 1,
Complainant stated that the Manager of Distribution Operations (MDO1) and another Manager of
Distribution Operations (MDO2) began criticizing her supervisory skills in front of Inbound area
employees and stopped her from supervising. She further stated that MDO1 and MDO2 “kept
watch” over her for allowing employees to take leave, although employees had provided proper
documentation. Complainant stated that MDO1 and MDO2 repeatedly told her that she gave
employees too much leave.

Additionally, Complainant stated that she was not allowed to serve as working leader of the
Inbound group or control the nondistribution group work unit because she was constantly away
from the area on a mule.3 Complainant further stated that she was not able to make sure loads
were properly moved and Mail Handlers were assigned a fair share of the load because she was
not allowed to talk to the employees without the Acting Supervisor (S1) watching and telling her
what to do. Complainant stated that she was unable to receive assignments and well-defined work
plans and instructions on a job-by-job or day-to-day basis because S1 would not allow her to check
the head count, check the truck count, or print out truck count sheets so employees would know
how many trucks they had. Complainant stated that she was unable to assign employees in the
group to individual tasks because the Acting Supervisor would not let her assign employees who
had completed a job to another job. She stated that she was unable to resolve problems of a routine
nature because the Acting Supervisor would not talk to her when she attempted to inform him of
matters. Complainant further stated that she was unable to instruct new employees in the various
aspects of their assignments because the Acting Supervisor would not let her train or talk to the
employees.

2 In her investigative statement, Complainant stated that she was not claiming discrimination based
on genetic information. Report of Investigation (ROI), Affidavit A, p. 6. Therefore, we will not
review this basis of discrimination herein.

3 A mule is a type of powered industrial equipment used in mail facilities.
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Complainant also stated that she was unable to provide immediate supervisors with information
for personnel actions and to promote employee morale because the Acting Supervisor only allowed
her to collect money for a dying employee. Complainant stated that she is only allowed to perform
nonsupervisory duties and ride a mule every day.

Regarding claim 2, Complainant did not provide a requested affidavit regarding this claim.
However, in her complaint, she alleged that on May 9, 2013, she returned to work on light duty
and attempted to obtain a limited duty assignment. She stated that she could not drive and sought
a change of schedule because she rode to work with a coworker, but MDO2 denied her request.

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.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s decision relies “entirely on evasive testimony
and pretext.” The Agency requests that we affirm its final decision.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Disparate Treatment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, 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).
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Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In this case, we assume arguendo that Complainant established a prima facie case of
discrimination. Nonetheless, we find that the Agency provided legitimate, nondiscriminatory
explanations for its actions. Specifically, for claim 1, the Acting Supervisor stated that
Complainant and her union steward came to him asserting that she was not able to do her job as a
Group Leader, but they could not tell him what he was doing to cause her not to perform her job.
The Acting Supervisor further stated that the only conclusion that could be made was that
Complainant did not want to do her job or follow his instructions. He stated that he attempted to
offer training to Complainant, but he could not communicate or talk to her regarding her position.

MDO2 stated that Complainant did not want to follow her supervisors’ instructions for her daily
assignments to work along with other employees to take the lead to get jobs accomplished. She
stated that the Group Leader’s position is a not supervisor’s position. MDO2 stated that she has
never criticized Complainant in the presence of other employees. MDO2 further stated that she
was aware that Complainant did not want to follow the Acting Supervisor’s instructions. She
stated that she instructed the Acting Supervisor to give Complainant assignments on a daily basis,
and then instructed Complainant to adhere to her assignments and take the lead with other Mail
Handlers to get the job done.

Regarding claim 2, MDO2 stated that she responded to Complainant’s request for a schedule
change by telling her that the Agency had a job to do, and she was only approving one schedule
change at a time. She stated that she also told Complainant that she would get her schedule
changed when another employee’s 30-day schedule change ended, which is what happened.
MDO2 stated that it is not the Agency’s job to change an employee’s days off so that they can get
to work, and the City of Memphis has public transportation that employees can use to get to work.

In an attempt to prove pretext, Complainant maintains that her access to open the door and to check
the leave book was removed, but two male coworkers (C1 and C2) did not have their access
removed. However, the record reveals that C1 and C2 sometimes served as Acting Supervisors,
whereas Complainant did not. Moreover, other Group Leaders did not have such access.4

4 Additionally, Complainant compared herself to a former employee who was a Group Leader
before the relevant time period and was not supervised by the management officials in this case.
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Regarding Complainant’s request for a schedule change, we reiterate that Complainant failed to
provide a requested affidavit regarding this matter. Moreover, the record reveals that MDO2
approved Complainant for a schedule change from June 1 to 28, 2013.

Thus, we find that the Agency properly found that Complainant was not subjected to unlawful
discrimination because she did not prove that the Agency’s nondiscriminatory explanations are
pretext for unlawful discrimination.

CONCLUSION

Accordingly, 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 for the reasons
set forth herein.

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.
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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

December 11, 2018
Date