EEOC Appeal 2020000156

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tran M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 2020000156
Hearing No. 471-2017-00112X
Agency No. 4J-493-0015-17
DECISION
The Commission accepts Complainant’s appeal from the Agency’s June 6, 2019 final agency
decision (FAD) concerning her equal employment opportunity complaint, alleging discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. and the Age Discrimination Employment Act of 1967 (ADEA) as amended, 29 U.S.C. §
621 et seq. 	The Commission’s review is de novo. 	For the following reasons, the Commission
AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manager, Customer
Services, EAS-22, at the Agency’s Grand Rapids Post Office in Grand Rapids, Michigan.
On March 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (Black), age (53), and in
reprisal for prior protected EEO activity when:
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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1. 	On February 8, 2017, she was denied a lateral transfer request, and subsequently, she
was not awarded the position when she applied for it; and
2. 	On February 21, 2017, she was forced to work on her scheduled day off.
On December 27, 2016, Complainant verbally notified her immediate manager (M1) of her interest
for a lateral transfer to the Grand River Carrier Annex for the vacant Manager, Customer Services
(EAS-22) position announced under Vacancy Announcement No. NB10071528. M1 responded
by informing Complainant to submit her request in writing. Complainant did so. 	Complainant
emailed the Postmaster communicating her interest for a lateral transfer via email and copying M1.
The Agency’s procedure for a lateral transfer request is as follows: the supervisor may either accept
the lateral transfer request or require the candidate to apply for the position. The Postmaster did
not respond to Complainant’s email regarding her lateral transfer request. Rather, on January 3,
2017, Complainant encountered the Postmaster in-person at which point Complainant inquired
about her transfer request. 	The Postmaster responded that Complainant must apply for the
position. 	Complainant complied with the Postmaster’s requirement to apply, submitting her
application on January 4, 2017, which was the last day to apply.
While Complainant awaited a response to her application, Complainant expressed concern and
disappointment about poor customer service during Martin Luther King Day - a day which
Complainant did not work. This was not the first time Complainant expressed concern about her
facility’s collections on holidays, which she did not work; in fact, Complainant had previously
complained about the location’s shortcomings on a Columbus Day and on a Veterans Day.
Complainant and the Postmaster exchanged emails on January 17, 2017. 	In this exchange, the
Postmaster defended those who did work, stating that their efforts exceeded expectation. 	As a
result of this exchange, the Postmaster instructed Complainant to work the following holiday,
President’s Day, although Complainant had requested the day off. 	Complainant worked on
President’s Day and requested the day after President’s day off. 	Complainant’s manager (M2),
pre-approved this day-off request.
On February 2, 2017, the Postmaster and M2 interviewed Complainant for the vacant position. On
February 8, 2017, the Postmaster informed Complainant that she did not get the position. Instead,
management selected the selectee for the position.
At the conclusion of its investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). 	Complainant timely requested a hearing but subsequently withdrew her request.
Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). 	The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination or
reprisal as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL
On appeal, Complainant contends that she established a prima facie case of discrimination on the
bases of race, color, sex, and age, and retaliation. Complainant alleges that the Agency violated
EEO statutes and polices when it denied her lateral transfer request and when it forced her to work
on her day off. Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
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). Complainant must initially establish a prima facie case by demonstrating that he
or she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 at n. 13. 	The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In this case, assuming arguendo that Complainant established prima facie cases of discrimination
and reprisal, the Commission finds that the Agency has articulated legitimate, nondiscriminatory
reasons for its actions. 	Regarding claim (1), management was not required to simply accept
Complainant’s lateral transfer request. ROI, Affidavit C, p. 3. Rather, management was within
its discretion to competitively select the best candidate for the position; as such, management
required Complainant to apply. 	Id. 	Management substantiated its reasons for this as the
Postmaster had expressed concern about Complainant’s job performance as Manager, Customer
Service (EAS-22), prior to Complainant’s lateral transfer request. 	ROI, Exhibit 7, p. 1. 	In one
such email, the Postmaster highlighted that Complainant had not followed standard operating
procedures to assist operations when the location was busy or shorthanded. Id.

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Moreover, given the Postmaster’s experience working with Complainant, the Postmaster’s
requirement 	seemed 	reasonable, 	especially 	when 	Complainant 	did 	not 	comply 	with 	the
Postmaster’s request to implement changes that the selectee had made. ROI, Affidavit B, p. 14-
16. It is also worth noting that the Postmaster selected Complainant for her Level 21 position and
promoted Complainant to her Level 22 position. ROI, Affidavit B, p. 14. Although this does not
mean that the Postmaster was incapable of acting with discriminatory animus toward Complainant,
this does strongly suggest that the Postmaster did not have an issue with hiring and promoting
Complainant.
Furthermore, the selectee had demonstrated his aptitude for the position. Although Complainant
had more years of management experience than the selectee, the selectee’s lack of management
experience was not the dispositive factor in the selection process. 	ROI, Exhibit 5, p. 2; ROI,
Exhibit 17, p. 4. 	When Complainant went on sick leave, the selectee assumed her position,
implemented 	the 	requested 	standard 	operating 	procedures, 	and 	improved 	the 	location’s
performance. ROI, Affidavit B, p. 15. In turn, the Postmaster requested Complainant to continue
practicing these procedures after her return from leave. Id. at 15-16. Complainant did not do so.
According to the Postmaster, when Complainant was approached about continuing these
procedures, she became defensive and unprofessional. 	Id. at 16. 	Additionally, even before
Complainant did not comply with these requested procedures, the Postmaster considered
Complainant to be only minimally qualified for the position; whereas, the selectee had
demonstrated that he was able to fix issues that Complainant had not. 	Id. at 10, 13, 15. 	This
positioned the selectee’s application above the Complainant’s.
Regarding claim (2), Complainant complained about collections for her location regarding the
following holidays: Columbus Day, October 10, 2016; Veterans Day, November 11, 2016; and
Martin Luther King Day, January 16, 2017. 	ROI, Affidavit A, p. 19. 	As a result of these
complaints, the Postmaster required Complainant to work on the next holiday, President’s Day.
Id. at 20. 	In response to the Postmaster’s requirement, Complainant simply responded, “[o]k”;
although Complainant worked on President’s Day, she did not work the day after because she had
completed a PS Form 3971 and had received approval from M2. 	ROI, Affidavit B, p. 7; ROI,
Affidavit A, p. 20. Complainant then claimed the Postmaster made her work on President’s Day
because the Postmaster “had a bone to pick with her”; that the Postmaster did not care for African
Americans; and that the Postmaster wanted to exert her dominance as a white woman over her, a
black woman. ROI, Affidavit A, p. 20-21.
The Postmaster denied forcing Complainant to work on her scheduled day off. ROI, Affidavit B,
p. 5. 	Rather, the Postmaster explained that Complainant agreed to work President’s Day then
switched her day off from President’s Day to the day after it. Id. In justifying why Complainant
needed to work on President’s Day, the Postmaster stated that Complainant needed to “see what it
[was] all about”, i.e. Complainant needed to experience what it was like to work on a holiday. Id.
Still, the Postmaster stated that it was common practice for a manager to change an employee’s
schedule. Id. at 7.

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Because the Agency has proffered a legitimate, nondiscriminatory reason for the alleged
discriminatory events, Complainant now bears the burden of establishing that the agency’s stated
reason is merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No.
05960403 (Dec. 6, 1996). Complainant can do this by showing that the agency was motivated by
a discriminatory reason. Id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).
Here, Complainant has failed to meet that burden. Regarding claim (1), although M1 did suggest
that Complainant was a good fit for the position, M1 was not a selecting official, and the
Postmaster, a selecting official, disagreed. 	ROI, Affidavit C, p. 3-4. 	Complainant only uses
conclusory statements unsubstantiated in the record to support her allegation that the Agency’s
purported reasons were merely pretextual. 	For example, Complainant suggested that the
Postmaster exercised nepotism to fill the vacant position because she had “pre-selected” the
selectee. ROI, Affidavit A, p. 8. Complainant claimed that the Postmaster gave the selectee extra
clerks and carriers to enhance his work performance, and it was rumored that the selectee had been
recruiting other employees to work with him before he had been selected for the position. Id. at
8-9. 	Complainant did not present sufficient evidence substantiating these claims. Rather,
Complainant relied on her personal observations of the selectee, rumors about the selectee, and
previous unrelated EEO complaints against the Postmaster as evidence of discriminatory animus
to support her allegations. 	Id. at 11. 	Put simply, Complainant did not provide evidence to
overcome management’s evidence to establish that management’s proffered reasons were
pretextual.
Upon review of the evidence, the Commission finds no evidence that Complainant's protected
classes were a factor in the matters at issue. Complainant's subjective belief that the treatment she
received was the result of discrimination or reprisal is insufficient to prove pretext. At all times,
the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence
that the Agency's reasons were not the real reasons and that the Agency acted on the basis of
discriminatory or retaliatory animus. Complainant failed to carry this burden. The Commission
finds that Complainant has not established that she was subjected to discrimination or reprisal as
alleged with respect to each of the claims at issue.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission
that we AFFIRM the Agency’s final decision because the preponderance of the evidence does not
establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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.

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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
September 14, 2020
Date