[Redacted], Zelda C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 19, 2022

Appeal No. 2021003641 (E.E.O.C. Sep. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zelda C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003641 Hearing No. 430-2021-00107X Agency No. 1K-271-0037-20 DECISION On June 7, 2021, 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 May 7, 2021, 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 During her probationary period that began on May 9, 2020, Complainant worked as a Mail Handler Assistant, 04/A, at the Agency’s Processing and Distribution Center in Raleigh, North Carolina. On August 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on June 6, 2020, Complainant was terminated during her probationary period. As a Mail Handler Assistant, Complainant was informed her lunch break was 30 minutes long and her break was 15 minutes long. 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. 2021003641 2 On June 5, 2020, Complainant’s Supervisor (S1) observed Complainant taking a 25-minute break from 6:30 p.m. to 6:55 p.m. S1 asked Complainant why she took a long break and Complainant stated she had to walk to the break room, get ice, and she had to walk slowly to avoid being hit by equipment, which all together justified a 25-minute break. S1 explained to Complainant that she only had 15 minutes for break and told her to stop taking long breaks. Complainant averred S1 falsely accused her of taking a long break based on hearsay and that he told her, “Don’t argue with me, don’t talk back to me.” Later that day, S1 did not see Complainant in her work area. When she returned, S1 questioned her whereabouts. Complainant explained she had gone to talk with a union representative. S1 told her she could not just leave her work area without letting him know. S1 averred Complainant then went off on him and she kept saying she was “a grown woman” and he couldn’t talk to her that way. The Acting Manager of Distribution Operations (Manager) told Complainant she was being sent home and to return to work the next day. Complainant said M1 and S1 said she was aggressive and disrespectful when she was explaining herself. On June 6, 2020, Complainant met with her union representative and S1, when S1 said she was getting a 30-day work evaluation. Complainant said M1 then came in and told her to hand in her badge, which she refused because she did not know she was being terminated. M1 stated Complainant was notified on June 6, 2020, that she was terminated during her probation. He said Complainant was terminated for conduct and bad behavior, refusing to take orders, refusing to listen to her supervisor, and being argumentative with M1. Complainant alleged the evaluation process was improper and unjust as she was the only employee who received one. Complainant claimed she was not given a reason for her termination initially. Complainant said she was later informed she was terminated because she was still in her 90-day probationary period and could be fired for any reason, and that she was terminated for her unprofessionalism because she said she was a “grown woman” and management mistook her standing up for herself as being aggressive and disrespectful. Complainant disagreed with the decision, stating that she never cursed, acted aggressively or disrespectful and always acted professionally. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected her to discrimination as alleged. The instant appeal followed. Complainant did not file any arguments or contentions in support. ANALYSIS AND FINDINGS 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 2021003641 3 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”). Disparate Treatment 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). Complainant must initially 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. Corp. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, assuming arguendo Complainant established a prima facie case based on sex, the Commission finds Complainant failed to present evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. The Agency stated Complainant’s termination was based on conduct and bad behavior. Complainant’s Employee Evaluation and/or Probationary Report shows that on June 6, 2020, Complainant was rated as ‘Satisfactory’ for three of the six work factors and ‘Unsatisfactory’ for the other three work factors. It states that Complainant took a long break, reported late to her work area and became aggressive and argumentative when she was confronted. ROI at 221. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As a probationary employee, Complainant was subject to termination at broad discretion of Agency management so long as her probationary termination was not based on a discriminatory motive. Dona A. v. Dep't of the Navy, EEOC Appeal No. 0120133112 (Dec. 18, 2015). Aside from Complainant’s conclusory allegations and speculations, Complainant failed to establish that the Agency’s articulated reasons were pretext for discriminatory or animus. As a result, the Commission finds Complainant has not established by a preponderance of the evidence that the Agency subjected her discrimination as alleged. 2021003641 4 CONCLUSION 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2021003641 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 September 19, 2022 Date