EEOC Appeal 2020001490

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Myung S.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 2020001490
Agency No. 4C-080-0055-19
DECISION
On December 2, 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
November 13, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 City Carrier at the Agency’s Edgemoor Post
Office in Wilmington, Delaware.
Complainant failed to report an accident she had with a work vehicle. 	Thereafter, the business
involved in the accident reported it to the Agency. 	On October 8, 2018, the Agency issued
Complainant a Notice of Removal (NOR). As a result of a Step B Grievance, however, the removal
was reduced to a 14-Day Suspension. The Step B Decision, dated December 7, 2018, required
management to return Complainant to duty “as soon as practicable upon her successful completion
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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of motor vehicle refresher training.” Complainant attended the course on December 13, 2018 and
again on December 27, 2018, but did not pass on either occasion. 	On March 11, 2019,
Complainant was issued another Notice of Removal, for “Unsatisfactory Job Performance/Failure
to Meet the Requirements of Your Position,” citing her failure to pass the vehicle refresher training.
Believing that the Agency’s actions were discriminatory, Complainant contacted an EEO
Counselor on January 30, 2019. 	Informal efforts to resolve Complainant’s concerns were
unsuccessful. On May 10, 2019, Complainant filed a formal complaint based on sex (female), age
(y.o.b. 1956), disability (cataract), and in reprisal for prior protected EEO activity.
The Agency framed the claims as follows:
1. 	On or around October 8, 2018, Complainant was issued a Notice of
Removal; and
2. 	On or around March 11, 2019, Complainant was issued a Notice of
Removal.
On June 12, 2019, the Agency issued a notice of partial dismissal. 	The Agency dismissed claim
(1) was dismissed for untimely counselor contact. 	According to the Agency, Complainant’s
contact was well beyond the forty-five day time limit and EEO posters, describing the time period,
were on display. The Agency accepted claim (2) for investigation.
After an investigation of claim (2), 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). In accordance with Complainant’s request, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its May 10. 2019 decision, the Agency incorporated its earlier June 2019 dismissal of claim (1).
Regarding the merits of claim (2), the Agency found no discrimination. Regarding the basis of
reprisal, the Agency found that Complainant did not establish a prima facie case, because the
management officials were unaware of her prior activity when the NOR was issued in March 2019.
Moreover, the Agency found that Complainant did not establish a connection between her prior
activity and the NOR. As for the basis of disability, the Agency assumed, without so finding, that
Complainant was disabled for the purpose of analysis. Yet, the Agency found that no prima facie
case was shown, as for any of her protected bases, because the individuals cited by Complainant
were not similarly situated.
Nonetheless, the Agency turned to the legitimate, non-discriminatory reasons set forth by
management. Complainant’s supervisor attested that Complainant was issued the NOR because
she failed the necessary driver’s training twice. The Manager, Customer Services, found that the
training failure reflected her driving was dangerous.
Complainant filed the instant appeal. She provides no brief nor contentions.

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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”).
Untimely Counselor Contact
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. 	The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when
the forty-five (45) day limitation period is triggered. 	See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). 	Thus, the time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.
EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that she was not notified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence she was prevented by circumstances
beyond her control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
The record reflects that Complainant’s initial EEO contact, regarding the October 8, 2018 NOR,
was beyond the time limit. 	She has not provided any reason for her untimely EEO Counselor
contact. Therefore, we find that the Agency’s dismissal of claim (1), pursuant to 29 C.F.R.
1614.107(a)(2) was proper.
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). 	He must generally establish a prima facie case by demonstrating that he 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).

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The prima facie inquiry may be dispensed with in this case, however, since 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).
The record reflects that when Complainant failed to report her “at fault work-vehicle accident” to
the Agency she was issued an October 8, 2018 NOR. The NOR was reduced to a suspension and,
as part of her return to work, Complainant was required to successfully complete Driver Refresher
Training. Complainant acknowledges that, even after two attempts, she failed the course. In her
February 9, 2019 Pre-Disciplinary Interview (PDI), Complainant admitted to hitting cones. When
asked how many times she backed up the vehicle, she replied “they only gave me eight times.”
These failures were the basis for the March 11, 2019 NOR. In addition, the NOR noted that during
the training Complainant: did not use turn signals, failed to use flasher and horn while backing up,
failed to check mirrors before leaving boxes, and struck cones multiple times.
Complainant has not met her burden in showing that the Agency’s proffered reasons were pretext
for discrimination. 	She has not provided evidence that, more likely than not, the Agency was
motivated by her sex, age, disability or prior EEO activity. In fact, we find that Complainant has
not shown any nexus between her removal and her protected bases. When asked why her sex was
a factor, Complainant attested that a majority of the employees were male and male employees
who had accidents were not disciplined or issued corrective action. While she was sent to driver
training, Complainant argues, male employees simply watched a video and returned to work. We
agree with the Agency, however, that the male employees cited by Complainant were not similarly
situated. 	They did not work for the same supervisor nor is it clear that they failed to report an
accident.
As for her age, Complainant believed that management wanted her to retire. This belief, without
more, does not establish a prima facie case of age discrimination.
As for her disability (cataracts), Complainant presents inconsistent statements. When asked about
the timing of her diagnosis, Complainant explained that it was after the drivers’ training “because
I was having difficulty seeing during the driver’s refresher training course.” Yet moments later,
she stated that her condition does not impact her job at all. According to Complainant, “I cannot
drive at nighttime but my route is during the day and is a non-issue.” Conflicting statements also
surround questions regarding the training. Complainant notes that, after hitting several cones, “the
trainer knew I was having vision issues and still continued with the testing.” Yet, she also argues
that the instructors did not permit her to continue with the street portion of the training.
Complainant has not shown that she was issued the NOR, not for her inability to meet the driving
requirements, but because of her disability. 	Similarly, she has not provided evidence that
management was motivated by her prior EEO activity in issuing the NOR.

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The Agency’s decision finding no discrimination was proper.
CONCLUSION
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
October 29, 2020
Date