U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maragret L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000216 Hearing No. 410-2019-00029X Agency No. 4K-290-0018-18 DECISION On October 9, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 27, 2019 final action concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant was employed by the Agency as a Customer Service Supervisor, Customer Service at the Agency’s Murrells Inlet, South Carolina Post Office. On December 29, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on sex (female) when, after reporting that she was being subjected to ongoing threatening behavior from a subordinate employee, management failed to properly address the matter.2 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. 2 On January 19, 2018, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and 20200002162 After its investigation, 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. Thereafter, the AJ issued an Order to Show Cause why summary judgment should not be granted. Specifically, the AJ ordered Complainant to produce any documents in her possession that are not contained in the report of investigation which would support her claim. Subsequently, the AJ issued a decision by summary judgment in favor of the Agency finding no discrimination. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant, on appeal, argues that she was prejudiced by the AJ’s failure to consider her September 18, 2019 Response to the Show Cause Order. In response, the Agency asserts that Complainant’s initial submission was unresponsive to the AJ’s Order to Show Cause. ANALYSIS AND FINDINGS As a threshold matter, we note that Complainant, on appeal, argues that she was prejudiced by the AJ’s failure to consider her September 18, 2019 Response to the Show Cause Order. However, our review of the response submitted shows that Complainant merely restated arguments previously presented in the report of investigation. After a careful review of the record, we concur with the Agency that Complainant’s response dated September 18, 2019, was unresponsive to the AJ’s Order to Show Cause. 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., 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 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). remanded the matter to the Agency for further processing. Complainant v. United States Postal Service, EEOC Appeal No. 0120181257 (May 23, 2018). Following the Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal. 20200002163 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. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant worked in a small office with a named custodian (“Custodian”) at the Agency’s Murrells Inlet, South Carolina Post Office. While they got along well for many years, they then had a falling out. The Custodian filed an EEO complaint against Complainant and her predecessors for illegal reporting of time. The AJ noted that this led to an argument between Complainant and Custodian. According to Complainant, the Postmaster informed her that the Custodian made a statement to the effect that he would hate to wake up in the Veterans Affairs Administration Hospital being told he did horrible things. The AJ noted that the Postmaster has verified that he told Complainant what the Custodian had said to him. The AJ noted that the Custodian asserted he was “slightly” misquoted. The record reflects that the Postmaster sent the Custodian home, stating that his statement could be interpreted as threatening. The Postmaster (male) noted that during the relevant period, Complainant reported her concerns working with the Custodian and she “was offered a position at the same level in another office. She declined. [Complainant] also expressed her fears to me on August 23rd 2017 and explained that she would not be back to work until her perceived threat has been dealt with. She then asked if I wanted her to still ‘open’ [be]cause she knew that I was responsible for my children going to school. This struck me as odd due to the fact that this would have put her in the building with [Custodian] for nearly 2 hrs prior to my arrival.” , 20200002164 Further, the Postmaster noted that several teams were sent to the Murrells Inlet Post Office to investigate Complainant’s allegations and “all found no credible threat. The last TAT [Threat Assessment Team] concluded that it would be best to move [Complainant] temporarily to allow her anxiety and panic attacks to subside. She has not reported back to work yet.” The Manager, Post Office Operations (male) acknowledged receiving Complainant and the Custodian’s written statements concerning the March 4, 2017 incident in which the Custodian allegedly verbally attacked Complainant about her falsifying employees reports and payment records. He stated that he conducted a face-to-face discussion with the Custodian in which “I wanted to make sure he understood any type of threat would not be tolerated.” The Manager stated that when Complainant shared her fears of working with the Custodian, he offered her another office to work in but she declined his offer. He further stated that Complainant and Custodian “both were reporting on each other, it seemed to be a “he said, she said” complaint. I offered her another office but she refused. As a craft employee without solid evidence to substantiate the allegations against [Custodian], any action would have been looked at as a retaliatory since she was the one coming at him and using profanity towards him based on other employee statements. No statement indicated he was violent or threatening towards her.” Furthermore, the Manager stated that he asked the Postmaster of the Agency’s Walterboro, South Carolina facility to investigate the Custodian’s allegations and it “led to accusations towards [Complainant] in how she both handled herself and rural route timekeeping resulting in corrective action towards her. Her allegations resulted in the district following on 08/17/2017 when they sent [Labor Relations Specialist] to the Murrells Inlet Post Office and he also recommended [Complainant] move to another station and attend some type of employee engagement training. The District then asked the Area Labor Manager for assistance and they went onsite on 08/29/2017 and again came to the same conclusion that [Complainant] should go another station even if it was temporary.” There is ample evidence of record to show that Complainant and the Custodian had personality clashes, and that both Complainant and Custodian made inappropriate remarks to each other. Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for their actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask sex discrimination. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment decision, finding no discrimination was established. 20200002165 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. 20200002166 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 August 27, 2020 Date
