EEOC Appeal 2020000023

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Estefana M.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2020000023
Agency No. 1J-631-0051-18
DECISION
On August 17, 2019, 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
July 15, 2019 final decision 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. The Commission accepts the appeal in accordance
with 29 C.F.R. § 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a General Expediter at the Agency’s St. Louis
Metro Annex in Hazelwood, Missouri.
On January 29, 2019, Complainant filed a formal EEO complaint, claiming that the Agency
discriminated against her based on race (African-American), national origin (American), sex
(female), religion (Baptist), and color (brown) when:
1. 	On or around August 14, 2018, she was issued a Letter of Warning (LOW); and
2. 	On or around August 26, 2018, she was issued a LOW.
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.

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After an 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). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision on July 15, 2019, pursuant
to 29 C.F.R. § 1614.110(b), finding no discrimination.
Complainant filed the instant appeal. On appeal, Complainant contends she never received a copy
of the report of investigation. Further, she asserts that, due to the death of her son in December
2018 and an injury at work in February 2019, she has “been incapable of mentally or physically
handling my pertinent business.”
ANALYSIS AND FINDINGS
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”).
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). 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). 	The prima facie
inquiry may be dispensed with in this case, however, because the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). 	To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. 	Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
According to the August 14, 2018 LOW (claim (1)), Complainant was issued the discipline based
on “conduct unbecoming.” 	Specifically, while Complainant was working, another employee
(hereinafter “Employee-H”) entered the unit. Complainant asked why she was there. Employee-
H purportedly replied that she was reading.

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As Employee-H started to walk along the machines checking the horse heads, Complainant
blocked her path with her body and bumped her with the pole used to rake mail down into bins.
During the pre-disciplinary interview, when asked to explain the incident, Complainant simply
denied that it occurred. 	Therefore, we agree that the Agency has provided a legitimate, non-
discriminatory reason for the LOW. The burden now shifts to Complainant to show that the
proffered reason is pretext for discrimination.
Complainant identified two comparators whom she believed had also had altercations with
Employee-H, but were not disciplined. The supervisor who issued Complainant her LOW,
however, was not involved with the other incidents. 	Further the comparators held different
positions than Complainant. Therefore, we agree with the Agency’s reasoning that the individuals
cited by Complainant were not similarly situated.
Further, Complainant failed to establish any nexus between her protected bases and the August 14,
2018 LOW. 	Instead, Complainant asserted that Employee-H was friends with management
officials. She has not met her burden in proving that her discipline was motivated by discriminatory
animus.
Regarding the August 26, 2018 LOW, it was issued due to Complainant’s “Failure to Follow
Instructions/Conduct Unbecoming.” According to the Plant Manager, she observed Complainant
and another employee (hereinafter “Employee-L”) engaged in what appeared to be an argument.
When the Plant Manager approached them, Complainant told the Plant Manager “I am having a
personal conversation.” As the Plant Manager got closer, Complainant repeated “I am having a
conversation”. 	Meanwhile, Employee-L had walked away and returned to work. 	Complainant
was instructed to return to her assignment. The Plant Manager learned, however, that Complainant
did not return to work, but instead went to a find a union steward. 	The Plant Manager stated,
however, that Complainant did not have approval for union time. The Plant Manager also stated
that it was a busy night when Complainant was needed to work her unit. 	During the pre-
disciplinary interview for the August 26, 2018 LOW, Complainant refused to speak when asked
to explain her actions. 	Similarly, when asked if she had anything to say, Complainant did not
respond. The Agency has met its burden in providing a non-discriminatory reason for the August
26, 2018 LOW.
When asked why she believed her protected bases were a factor, Complainant noted that
Employee-L, a male, was not disciplined. However, we find that Employee-L was not similarly
situated in that he returned to his assignment as soon as the Plant Manager approached. In contrast,
Complainant repeatedly stated she was having a conversation and did not follow the Plant
Manager’s order to return to work. 	A review of Complainant’s affidavit reflects conclusory
statements and speculation. For example, when asked why she believed her national origin was a
factor, Complainant answered “Different from everyone involved in LOWs. Self- evident”. 	As
for why her race was a factor, she simply stated that the Plant Manager is a racist. Complainant
has not shown that the August 28, 2018 LOW was discriminatory.

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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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, 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.

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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 23, 2020
Date