EEOC Appeal 2020001411

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.

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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.

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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.

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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.

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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