Pamela W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jun 28, 2017

0120151560 (E.E.O.C. Jun. 28, 2017)

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

Pamela W.,1
Complainant,

v.

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

Appeal No. 0120151560

Hearing No. 480-2013-00489X

Agency No. 4E-890-0007-13

DECISION

On March 23, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 26, 2015, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

In July 2012, the Agency hired Complainant as a probationary Postal Support Employee (PSE) at
the Agency’s Post Office in Boulder City, Nevada. On October 19, 2012, the Acting Postmaster
(APM) issued Complainant a notice of separation, effective immediately. Investigative Report
(IR) 69-70, 83, 119, 126, 129. On January 14, 2013, Complainant filed an EEO complaint in
which she alleged that the APM discriminated against her on the bases of race (Caucasian) and
sex (female) by terminating her during her probationary period.

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.
0120151560

2
The Agency investigated the complaint and notified Complainant of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. The Agency submitted a motion for summary
judgment on September 11, 2013, to which Complainant submitted a response in opposition.
The AJ issued a decision on February 12, 2015, without holding a hearing. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to raise a
genuine issue of material fact that would warrant a hearing on whether the APM had
discriminated against Complainant as alleged and adopting the AJ’s finding of no discrimination.

The APM averred that she terminated Complainant due to multiple deficiencies in her
probationary performance between July and October 2012. She cited deficiencies in the quality
and quantity of Complainant’s work as well as in her work methods, her relationships with her
co-workers, and her personal conduct. IR 119. In particular, the APM and the Customer
Services Supervisor (CSS) to whom Complainant was assigned pointed out multiple errors in
conducting window transactions, repeated instances of leaving stamps unattended on the counter
or otherwise failing to secure them, and refusal to be held accountable for her mistakes and take
direction from her coworkers. IR 94-99, 106-14. Other employees also provided statements
attesting to Complainant’s numerous errors and hostility toward her coworkers. IR 132, 135-39.

Complainant identified two white males who she alleged were treated less severely than her.
The first, Comparative (1) was a male probationary PSE who was hired the same day as her.
According to the APM and the CSS, Comparative (1)’s primary responsibility was to scan
incoming packages. They averred that he made some mistakes but promptly corrected them, and
that he had passed his probationary period. IR 97-98, 111-13. Comparative (2), also male, was a
career employee with 24 or more years of experience who had been assigned as the lead Window
Clerk. As part of his responsibilities, Comparative (2) was assigned to monitor Complainant’s
work performance. On one occasion in August 2012, he had tapped Complainant on the
forehead and called her “stupid” in front of customers after he had observed her committing an
error. Complainant filed a complaint, as a result of which Comparative (2) was issued a notice
of removal. He filed a grievance and was reinstated in December 2012. IR 99, 114.

ANALYSIS AND FINDINGS
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).
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.,
0120151560

3
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 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 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.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Therefore, in order to warrant a hearing on her disparate treatment claim, Complainant would
have to present enough evidence to raise a genuine issue of material fact as to whether the APM
had relied upon unlawful considerations of her race and sex when she terminated her on October
19, 2012.

Complainant must initially establish a prima facie case by demonstrating that she was subjected
to an adverse employment actions under circumstances that would support an inference of
discrimination. Furnco Construction. Co. v. Waters, 438 U.S. 567, 576 (1978). To do so, she
must show that she was treated less favorably than similarly situated employees outside of her
protected group. Idell M. v. Dept. of Defense, EEOC Appeal No. 0120151274 (May 5, 2017).
In order for Complainant to be considered similarly situated, all relevant aspects of her work
situation must be identical or virtually identical to those of the comparative employees. Natalia
v. Dept. of Health and Human Services, EEOC Appeal No. 0120141829 (August 9, 2016).

Here, we find that Complainant can establish a prima facie case only with respect to
Comparative (1) since both were probationary PSEs hired on the same day and assigned to the
same first-line supervisor, the CSS. She cannot establish a prima facie case with respect to
Comparative (2) because, unlike Complainant, he was a career employee and was subjected to a
different personnel action than Complainant.

The Agency must now articulate a legitimate nondiscriminatory reason for its action. The APM,
the CSS, and several of Complainant’s coworkers all provided statements to the effect that
throughout her probationary period, Complainant had made numerous repetitive errors in
0120151560

4
window transactions, stamp security, and other areas, and had refused to take direction in
correcting those errors.

To go forward with a hearing, Complainant must present enough evidence to raise a genuine
issue of material fact as to whether the Agency’s articulated reason is a pretext, i.e., not the real
reason but rather a cover for discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
515 (1993). A genuine issue of material fact on the question of pretext can be demonstrated by
showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate
reasons for its action that a reasonable fact finder could rationally find them unworthy of
credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007),
request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).

The only evidence that Complainant presented to show pretext was her own assertion, set forth in
her affidavit, that her performance was equal to or better than Comparative (1)’s performance.
IR 74. This is contradicted by the APM and the CSS, who both averred that Comparative (1)’s
performance was sufficient for him to pass his probationary period and that Comparative (1)
corrected his mistakes when they were pointed out to him. Complainant has not presented
affidavits, declarations, or unsworn statements from witnesses other than herself, or documents
which contradict the explanation provided by the APM for issuing the notice of separation or
which otherwise call her veracity into question. We therefore agree with the AJ that
Complainant failed to raise a genuine issue of material fact as to the existence of discriminatory
intent on the part of the APM when she terminated Complainant during her probationary period
on October 19, 2012.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s decision finding that Complainant was not
discriminated against as alleged.

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.
0120151560

5
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).

0120151560

6
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 28, 2017
Date