EEOC Appeal 2020001230

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Latoya D., 1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 2020001230
Appeal No. 0120182788
Hearing No. 550-2017-00239X
Agency No. 4E-995-0015-16
DECISION ON REQUEST FOR RECONSIDERATION
Complainant 	requested 	that 	the 	Equal 	Employment 	Opportunity 	Commission 	(EEOC 	or
Commission) reconsider its decision in EEOC Appeal No. 0120182788 (October 11, 2019).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).
On August 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Alaska Native), national origin (Alaska Native), age (56), and in
reprisal for unspecified prior protected EEO activity, from March 28, 2016 to May 11, 2016, when:
(1) she did not receive proper training;
(2) she was given a negative performance evaluation and was not given feedback on what she
could do to improve her performance; and
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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(3) on May 11, 2016, her employment was terminated, during her probationary period.
In our previous decision, we affirmed the Agency’s final order, which adopted an EEOC
Administrative Judge’s (AJ) summary judgment decision in favor of the Agency. The previous
decision, among other things, found that the AJ correctly determined that Complainant failed to
identify, with specificity, material facts in dispute which, had she done so, would have indicated
that a hearing was necessary to produce evidence to support a finding that the Agency was
motivated by discriminatory animus. The previous decision found it was undisputed that
Complainant failed to report for duty on the first three days she was to work and had several
subsequent absences. The decision also noted that while her Postmaster did not object to or rely
upon Complainant’s absences due to the death of her father-in-law, she believed that subsequent
absences could have been avoided during the remainder of Complainant’s probationary period.
The Postmaster also stated that Complainant did not get along with the other employees and
appeared to be conducting family business during work time. Complainant was also given a
negative evaluation during her probationary period. 2
In her request for reconsideration, Complainant argues that the previous decision was clearly
erroneous because: (1) her medical conditions justified the absences on which her termination was
based and evidence at least raised factual issues regarding the other purported reasons for her
firing; (2) there was evidence of a hostile work environment and deliberate efforts to turn
Complainant and her co-workers against each other, which could have provoked the loud
arguments between the coworkers on which the termination was based; (3) there was a factual
dispute over her performance, especially given the Postmaster’s own testimony that the
Complainant “performed OK;” and (4) her co-worker, who was Caucasian and younger than
Complainant, had “the same or similar performance problems” as those relied upon to terminate
Complainant, raising a factual issue regarding the claims of racial and age discrimination.
We remind Complainant that a “request for reconsideration is not a second appeal to the
Commission.” 	Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). A reconsideration request is an opportunity to demonstrate that the
previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will
have a substantial impact on the policies, practices, or operations of the Agency.
With respect to Complainant’s first contention, we note that the issue before us is not whether
Complainant had a good reason for being absent but whether there was evidence that the
Postmaster’s actions were reflective of discriminatory animus. As the Commission has repeatedly
held, pretext analysis is not concerned with whether the actions were unfair or erroneous but
whether the actions were motivated by discriminatory animus. Gregg B. v. Dep’t of the Army,
EEOC Appeal No. 0120151783 (June 7, 2017); Andrews v U.S. Postal Serv., EEOC Petition No.
03980017 (May 28, 1988).
2 The AJ did not address Complainant’s retaliation claim, citing that the record did not show that
she had any prior EEO complaint or activity.

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Regarding Complainant’s contention that the previous decision overlooked evidence that the
Postmaster provoked conflict between Complainant and her coworker, CW1, and took at face
value the Postmaster’s accusation that Complainant was the cause for any conflict between them,
we note that this does not indicate that there was a material dispute of fact because there is no
evidence that, even viewing this in the light most favorable to Complainant, the Postmaster’s
actions were based on Complainant’s protected bases.
With respect to Complainant’s third contention, we note that the Postmaster’s statement that
Complainant’s work performance was “okay,” is consistent with the previous decision’s
determination that she was removed, largely, for attendance and conduct issues. In her affidavit,
for example, Complainant acknowledged that her unsatisfactory evaluation was based on
attendance/dependability and work relations, not duty performance. Consequently, we do not find
the Postmaster’s comment that her work performance was “okay” is material.
Finally, with respect to Complainant’s fourth contention, we find that the previous decision
correctly determined that CW1 was not a valid comparator to Complainant nor was she treated
more favorable than Complainant, because unlike Complainant, CW1 was not a probationary
employee and had not been absent as much as Complainant. Moreover, the Postmaster also
proposed CW1’s termination, but was prevented from doing so by Human Resources because she
was no longer on probation. Where a complainant is a probationary employee, we have long held
that he or she are subject to retention, advancement, or termination at the discretion of an agency
so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv.,
EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152
(1974)).
After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
deny the request. 	The decision in EEOC Appeal No. 0120182788 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.

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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 24, 2020
Date