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

Equal Employment Opportunity CommissionJul 18, 2017
0120152235 (E.E.O.C. Jul. 18, 2017)

0120152235

07-18-2017

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


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Melani F,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Capital Metro Area),

Agency.

Appeal No. 0120152235

Hearing No. 570-2013-0045X

Agency No. 4K220006012

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's May 14, 2015 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Rural Carrier at the Agency's Ashburn Post Office facility in Dulles, Virginia.

On September 27, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of race (Asian), national origin (Taiwanese), sex (female), color (Asian, yellow-skinned), and age (59) when:

1. On July 20, 2012, Complainant was issued a Notice of Suspension of driving privileges;

2. On July 20, 2012, Complainant was denied a translator for her Pre-Disciplinary Interview;

3. On July 20, 2012, the Postmaster accused Complainant of having a motor vehicle accident; and

4. On August 16, 2012, Complainant was issued a Notice of Removal.

After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. Specifically, the AJ found that, with regard to claims 1, 3 and 4, Complainant failed to establish a prima facie case because she failed to identify similarly situated employees outside of her protected classes who were treated differently. With regard to claim 2, the AJ found Complainant failed to state a claim. The AJ further found that, assuming for the sake of argument that Complainant established a prima facie case, the Agency articulated a legitimate nondiscriminatory reason for its actions, namely that Complainant had been involved in a motor vehicle accident while driving her Postal truck, failed to promptly report the accident to management, and failed to be truthful about it. The AJ further found that Complainant failed to establish that the Agency's articulated reason for its actions were a pretext to mask discrimination.

The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015). We note that the AJ determined that Complainant and her witnesses were not credible while the Agency's witnesses were credible, noting that it was implausible that Complainant, who admitted to offering money to the other driver, would have made such an offer if no accident had occurred as Complainant claimed.

Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.

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 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.

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

July 18, 2017

__________________

Date

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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