[Redacted], Sana I., 1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 15, 2022

Petition No. 2022001578 (E.E.O.C. Sep. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sana I.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Petition No. 2022001578 MSPB No. DE-0752-21-0254-I-1 DECISION On January 28, 2022, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Supervisor, Customer Service, EAS-17 at the Agency’s Lamar Post Office facility in Lamar, Colorado and was on a temporary detail as the Officer-in-Charge of Fowler, Colorado. Petitioner alleged that the Agency discriminated against her on the bases of race (Caucasian), sex (female), disability (mental), and reprisal for prior protected EEO activity under Title VII when, on March 10, 2021, the Manager of Post Office Operations (Manager) sent her a Notice of Proposed Removal (Notice) based on four incidents of inappropriate conduct, specifically (1) failing to report a workplace accident; (2) directing her clerks to perform administrative timekeeping tasks for postal facilities within her husband’s area of responsibility; (3) advising an 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2022001578 2 employee whose daughter had just tested positive for Covid-19 to consider coming to work in violation of Covid-19 isolation protocol; and (4) failing to inform the Manager when she had carriers out on routes past 6:00 p.m., as she had been instructed to do. See Agency File, Tab 7, at 17-21. On December 29, 2020, the Manager conducted an investigative interview with Petitioner concerning these incidents. See Agency File, Tab 7 at 25-28. In response to the Notice of Proposed Removal, Petitioner requested mediation and submitted a written response, expressing her willingness to attend any training deemed necessary in order to avoid removal. See Hr’g Petitioner testimony; Agency File, Tab 7 at 16. On June 14, 2021, the District Manager (DM) issued a Decision on the Proposed Removal, which found that removal was warranted considering the numerous instances of inappropriate conduct and Petitioner’s failure to take appropriate responsibility for her action. See Agency File, Tab 7 at 12-15. Petitioner’s removal became effective on June 18, 2021. Petitioner appealed her removal to the MSPB alleging that the removal was discrimination on the bases of her race, sex, disability, and reprisal for prior protected activity. A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision upholding the removal. The MSPB AJ found that the Agency proved all four charges of inappropriate conduct by a preponderance of the evidence. See MSPB Initial Decision at 6-18. The AJ further concluded that the Agency established a nexus between Petitioner’s misconduct and her removal and further that Petitioner had not established that she was discriminated against based on either her race, sex, disability, or reprisal. See MSPB Initial Decision at 19-27. In finding no discrimination, the MSPB AJ relied upon the MSPB’s decision in Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB’s authority to adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law. Id. Petitioner then filed the instant petition. In her petition for review, Petitioner reiterates her contention that the Manager is a bully and her removal was retaliatory.2 She also challenges the timing of the Manager’s issuing the Notice of Proposed Removal, saying it was mailed to her when she was on leave, which she asserted was a deliberate attempt to prevent her from responding in a timely manner.3 The Agency did not file a brief in response. 2 To the extent Petitioner argues on appeal that she submitted two letters from former coworkers who corroborate her assertion that the Manager retaliates against people, we note that new evidence is generally not accepted on appeal and will not be considered. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). 2022001578 3 ANALYSIS AND FINDINGS EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. § 1614.305(c). In Petitioner’s case, we find that the MSPB AJ erred by not applying the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when deciding Petitioner’s claims of discrimination based on her protected bases. We will analyze this case according to the McDonnell Douglas paradigm. See Raphael C. v. Dep’t of Vet. Aff., EEOC Petition No. 0230160016 (May 10, 2016). We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her as alleged. To prevail in a disparate treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner 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, Petitioner 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). We assume, for purposes of analysis only and without so finding, that the Petitioner has established prima facie cases of discrimination based on her race, sex, disability, and reprisal. We find, however, that the Agency has articulated legitimate, nondiscriminatory reasons for Petitioner’s removal due to Petitioner’s inappropriate conduct in violation of Agency polices. We emphasize that at no point did Petitioner dispute that she committed the conduct at issue in her removal nor does she deny that she was aware of the Agency’s policies at the time. Petitioner also did not submit any evidence to support her assertions of a discriminatory motive based on any of her protected bases. 3 We note that the timing of the Manager’s issuance of the Notice of Proposed Removal is irrelevant to the merits of Petitioner’s argument and in any event, Petitioner was not actually denied an opportunity to respond to the Notice of Proposed Removal. 2022001578 4 The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003). Moreover, to the extent Petitioner contends that removal was too harsh a punishment for her conduct, we note that an agency has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan 16, 1997). Accordingly, the Commission agrees with the MSPB’s ultimate finding that Petitioner did not establish that her removal was based on discrimination due to any protected basis. CONCLUSION Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB’s decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 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. 2022001578 5 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’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 September 15, 2022 Date