2020001411•EEOC Appeal 2020001411
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oda H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020001411 Agency No. 1K-204-0008-19 DECISION On December 16, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 5, 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. BACKGROUND On December 8, 2018, Complainant was hired as a Mail Handler Assistant at the Agency’s Network Distribution Center in Washington, D.C., subject to a 90-day probationary period. On June 29, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the basis of sex (female) when, on March 1, 2019, she was terminated during her probationary period for attendance. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on December 5, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or retaliation was established. 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.
2020001411 2 The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Supervisor, Customer Service (“Supervisor 1”) (male) was the deciding official to terminate Complainant’s employment during her probationary period on the charge of unsatisfactory attendance. Specifically, he stated that a review of Complainant’s Time and Attendance Collection System (TACS) report reflected that Complainant had 24 instances of being tardy to work. Supervisor 1 also stated that on January 7 and February 6, 2019, he counseled Complainant regarding her tardiness. Complainant asserted that she was treated differently because of a personal relationship with Supervisor 1, which she stated had ended in the mid-January 2019, and that he treated male employees more favorably than her. Supervisor 1 asserted, however, that there had been no personal relationship between him and Complainant. Supervisor 1 noted that Complainant had informed him during a casual conversation that she had feelings for him. However, he immediately told her that he did not want a relationship with her and that their relationship would be strictly work-related. Furthermore, Supervisor 1 stated that the named male comparator was not treated any differently than Complainant.
2020001411 3 The Supervisor, Distribution Operations (“Supervisor 2”) (female) stated that during the relevant period “my review of [Complainant’s] attendance . . . led me to believe that disciplinary action was required. When [Supervisor 1] and I reviewed and spoke [Supervisor 1] determined that correction was needed and termination was appropriate and I concurred.” Supervisor 2 explained that during the investigation into the alleged relationship between Complainant and Supervisor 1, coworkers told her that Complainant made advances to the supervisor and wanted to purchase gifts for him. She further stated that Supervisor 1 “said he only gave [Complainant] his [phone] number as with other employees for emergency only.” Moreover, Supervisor 2 stated that it was her belief there was no relationship between Complainant and Supervisor 1. Here, responsible Agency management officials articulated a legitimate, nondiscriminatory reason for the decision to terminate Complainant during her probationary period. In sum, the Agency management determined to terminate Complainant based on her continuous tardiness, despite their attempts to correct this behavior. Complainant failed to prove, by a preponderance of the evidence, that this explanation was pretext designed to mask unlawful discriminatory animus. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that sex discrimination occurred. 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.
2020001411 4 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. 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.
2020001411 5 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 October 1, 2020 Date
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