Nakesha D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 17, 20192019002596 (E.E.O.C. Dec. 17, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nakesha D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019002596 Agency No. 4G-330-0207-18 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 January 25, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant (CCA) at the Coral Gables, Florida Post Office. Complainant was hired in this position on November 6, 2017 subject to a probationary period of 90 work days or 120 calendar days, whichever came first. In a letter dated March 2, 2018, S1 notified Complainant that she was terminated because of unsatisfactory attendance. On June 6, 2018, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the basis of sex (female/pregnancy) when, on or around March 2, 2018, she was issued a Separation During Probation letter. 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. 2019002596 2 In an investigative statement, Complainant stated that on March 2, 2018, she informed her supervisor (S1) and another supervisor (S2) that she was pregnant. Complainant stated that she was terminated for unsatisfactory attendance, but a non-pregnant female coworker (C1) with unsatisfactory attendance was not terminated. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, 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 sex discrimination as alleged. On appeal, Complainant contends that the Agency erroneously cited three absences in February 2018 as unscheduled, but these absences were scheduled. Complainant further maintains that on February 7, 2018, she reported to work to avoid an unscheduled absence and notified S1 that she was sick. Complainant contends that her supervisor did not respond to her notification, but a supervisor approved her for leave the next day. Complainant further contends that by February 8, 2018, she notified her supervisor of her doctor’s instruction not to work on February 9 and 10, 2018. Additionally, Complainant stated that she took unscheduled leave on February 15, 2018 to care for her mother who had a medical emergency. Complainant contends that on February 16, 2018, S1 made her sign a form that said her scheduled days off on February 8, 9, and 10, 2018 were unscheduled absences. Complainant further contends that her second unscheduled absence occurred when she was very ill, and she informed S1 that she was at the doctor’s office. Complainant stated that during the same period, she was diagnosed with several infections and in the early stage of pregnancy. 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”). 2019002596 3 ANALYSIS AND FINDINGS Disparate Treatment Generally, claims of disparate treatment such as this 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). 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, for purposes of analysis, we assume arguendo that Complainant established a prima facie case of discrimination. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory explanations for its actions. Specifically, S1 (female) stated that Complainant was terminated because she had three unscheduled absences during her probationary period. In an attempt to prove pretext, Complainant contends on appeal that the Agency erroneously cited absences in February 2018 as unscheduled although these absences were scheduled. However, Complainant did not deny that these absences were unscheduled during the investigation. Moreover, time and attendance records reflect that these absences were unscheduled. Likewise, Complainant did not assert during the investigation that S1 forced her to sign documentation designating the absences as unscheduled. As such, we find it questionable that Complainant raises these allegations for the first time on appeal. Complainant also contends that she told S1 she was pregnant moments before she was terminated on March 2, 2018. However, S1 stated that she was not aware Complainant was pregnant at the time she terminated her and did not learn of her pregnancy until March 10, 2018, after a grievance was filed on the matter. Likewise, S2 stated that he was unaware of Complainant’s pregnancy. Complainant has no provided no evidence that corroborates her claim that management was aware of her pregnancy before it terminated her, and therefore, we are not persuaded by her assertion. 2019002596 4 Finally, Complainant contends that C1 was not terminated, although she also had unscheduled absences. However, C1 only had one unscheduled absence during the relevant period, whereas Complainant had six unscheduled absences. Therefore, we do not find Complainant similarly situated with C1. Overall, we find that Complainant did not prove that the Agency’s nondiscriminatory explanations are pretext for unlawful discrimination. We have long held that where the complainant is a probationary employee, he is subject to termination at the discretion of an agency so long as these decisions are not based on a discriminatory consideration. Cleveland v. USDA, EEOC Appeal No. 0120073335 (Oct.12, 2007); Tortorelli v. Dep’t of the Air Force, EEOC Request No. 05920285 (May 7, 1992). We find no persuasive evidence that the Agency considered Complainant’s sex or pregnancy when terminating her. Therefore, we conclude that the Agency properly found that Complainant did not prove she was subjected to unlawful discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2019002596 5 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 December 17, 2019 Date Copy with citationCopy as parenthetical citation