U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamila R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120160810 Agency No. 4C-150-0059-15 DECISION Complainant timely 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 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED Whether Complainant established that the Agency's proffered explanation for its actions was a pretext to mask discrimination based on sex and reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Post Office in Greensburg, Pennsylvania. Report of Investigation (ROI), at 23. The Acting Supervisor of Customer Services served as Complainant's first-level supervisor (S1), and the Officer-in-Charge served as Complainant's second-level supervisor (S2). As a Mail Processing Clerk, Complainant was assigned to the Tour 2 shift, working between the hours of 4:00am and 12:00pm. Id. at 115, 122. On December 18, 2014, Complainant placed her name on the Overtime Desired List (ODL), writing that she was available for overtime before and after her scheduled tour. Id. at 97. On March 2, 2015, S1 assigned a Mail Processing Clerk (male) (MPC1) for overtime. MPC1 therein worked one hour and 41 minutes of overtime after his Tour 1 shift ended at 4:00am. Id. at 18. S1 additionally assigned a second Mail Processing Clerk (male) (MPC2) for overtime on March 2, 2015, also after his Tour 1 shift ended. Id. MPC2 therein worked 67 minutes of overtime for that day. Id. S1 assigned MPC1 for more overtime after the completion of his tour on March 4, 2015, receiving 90 minutes of overtime. Id. MPC2 also received 55 minutes of overtime on March 30, 2015. Id. On March 2, 4, and 30, 2015, Complainant began her tour at approximately 4:00 am and was not scheduled for overtime either before or after her tour. S1 initially responded to Complainant's allegations concerning her not working overtime on those dates stating: It was simply my error of not asking her on four occasions to come in on overtime. She requested four make ups in March and these were provided to her. We have since been using an ODL tracker and have not had this issue since March. EEO Counselor's Report, at 3. S1 however later stated that there was no reason to offer make up overtime for these dates, and therefore he did not do so. S1's Affidavit (Aff.), at 2. S2 also affirmed there was no ODL tracker in place at the time Complainant filed her EEO complaint. ROI, at 155. On July 14, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on March 2, 4, and 30, 2015, she was denied overtime. At the conclusion of the investigation, 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency initially found that Complainant failed to establish a prima facie case of discrimination based on sex, finding that both MPC1 and MPC2 were not similarly situated to her. In so finding, the Agency noted that Complainant worked Tour 2, while MPC1 and MPC2 were assigned to Tour 1. The Agency also found that Complainant failed to establish a prima facie case of discrimination based on reprisal. The Agency specifically found that although the events at issue occurred a couple of months after the close of Complainant's prior EEO complaint, S1 had no knowledge of this activity. Assuming that Complainant established a prima facie case, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that S1 explained that there was no reason to offer a make-up opportunity for Complainant since no overtime was warranted for her tour, Tour 2. The Agency also cited to S1's affidavit that overtime is offered by section and tour consistent with policy. The Agency found that Complainant did not show that its legitimate reasons were pretext for discrimination. CONTENTIONS ON APPEAL On appeal, Complainant asserts the Agency improperly found that MPC1 and MPC2 were not similarly situated to her. Complainant specifically contends that both MPC1 and MPC2 were both schemed qualified employees, as she was, who worked in her section. Complainant maintains that she, MPC1, and MPC2 were the only employees from her section who were on the ODL list for before tour overtime. Complainant maintains that not only were MPC1 and MPC2 given the overtime, but employees from other sections were given the overtime as well. Complainant further asserts that S1 untruthfully stated in his affidavit that he had no knowledge of her prior protected EEO activity. In so asserting, Complainant states that her prior EEO Complaint filed in October 2014 specifically named S1 as the responsible management official (RMO). Complainant maintains that her prior EEO complaint similarly concerned S1 providing overtime to men instead of women, and the Agency's EEO office interviewed S1 as the RMO. Complainant specifically maintains that her prior EEO complaint No. 4C-15-0008-15, filed in October 2014, named S1 as the RMO. Complainant states that the EEO Dispute Resolution Specialist wrote in the EEO Counselor's Report that S1 responded on November 20, 2014. Complainant therefore maintains that S1 was well aware of her prior EEO activity. The Agency has not filed a brief in response. 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"). ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). Upon review, we disagree with the Agency's conclusion that Complainant failed to establish a prima facie case of unlawful retaliation for prior EEO activity There is no dispute that Complainant engaged in protected EEO activity wherein she filed an EEO Complaint in October 2014 (Agency No. 4C-150-0008-15). Report of Investigation (ROI), at 17. Therein, Complainant alleged that since September 12, 2014, and continuing, S1 had been the management official responsible for bypassing her for overtime. Id. The record reflects that the initial case was settled in mediation on December 27, 2014. Id. We find that S1 clearly untruthfully attested that he had no knowledge of Complainant's prior EEO activity. It seems very unlikely that S1 would have no knowledge of Agency No. 4C-150-0008-15, wherein he was named as the RMO. In so finding, we note that Complainant states on appeal that S1 responded to the EEO Counselor for Agency No. 4C-150-0008-15 on November 20, 2014. We note, however, that the Agency has not responded to Complainant's appeal. Therefore, as the Agency does not dispute that Complainant established the requisite temporal proximity between the protected activity and the alleged conduct sufficient to establish a causal nexus, we find that Complainant has established a prima face case of discrimination based on reprisal.2 In order to establish a prima facie case of discrimination based on sex, Complainant must demonstrate that: (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sep. 26, 2002). As noted above, the record reflects that MPC1 and MPC2, both male, worked overtime on the dates at issue, while Complainant did not do so. We find that the Agency erred in finding that MPC1 and MPC2 were not similarly situated to Complainant. In so finding, we note that MPC1, MPC2, and Complainant all were scheme qualified Mail Processing Clerks who all worked in the same section. Each of their names were placed on the ODL list. Even assuming that MPC1 and MPC 2 are not similarly situated to Complainant in all respects, we find the evidence sufficient in this case to raise an inference of discrimination based on sex. As such, we find that Complainant has established a prima facie case of sex discrimination in the instant case. Once a complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. We note that S1 initially responded to the Complainant's allegations stating that it was simply his error and that Complainant was provided with make-up overtime dates. EEO Counselor's Report, at 3. S1 also responded that an ODL tracker was thereafter put in place to ensure that overtime was distributed equally. Id. This explanation meets the Agency's burden of production under Burdine. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 519. We find that Complainant clearly has done so in the present case, and that the Agency erred in finding otherwise. We note that the credibility of an agency's explanation is key and must be judged in light of all the evidence obtained. See EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, § V.A.2 (Apr. 19, 2006) (Compliance Manual). An agency's credibility will be undermined if its explanation is unsupported by or contrary to the balance of the facts. See id. Similarly, the credibility of the explanation can be called into question if it is unduly vague, appears to be an after-the-fact explanation, or appears otherwise fabricated (e.g., the explanation shifts, or inconsistent reasons are given). See id. In the instant case, we find that S1's credibility is especially undermined herein, given that he untruthfully attested for the EEO investigation that he had no knowledge of Complainant's prior EEO activity. S1's Aff., at 1. Also, S1 initially attested that it was his error and that make-ups for overtime were provided for Complainant. EEO Counselor's Report, at 3. S1, however, later attested in his investigative affidavit that there was no reason to offer make-up overtime for these dates and he had not done so. S1's Aff., at 2. S1 further explained that an ODL Tracker was later used, but S2 averred that one was not put in place at the time Complainant filed her EEO complaint. ROI, at 155. S1's explanations here are clearly inconsistent and contradictory, and are therefore unworthy of belief. The Supreme Court has held that a plaintiff may show pretext by establishing a prima facie case and sufficient evidence that the defendant's explanation is unworthy of credence. See Reeves, 530 U.S. at 144. We also note that another employee submitted a statement for the record expressing her belief that male employees were favored by S1 for overtime opportunities, and that she had filed an EEO complaint also. Id. at 104. In addition, the record contains a statement from a Union Steward, expressing her belief that S1 had been assigning overtime in violation of Agency policy. Id. at 102. We further note that S1 simply attested that there was overtime warranted for Tour 1 and not Tour 2 on the dates in question. S1 however does not elaborate and explain why there was overtime available for Tour 1, but not Tour 2. After a review of the record, we find that S1's reasons for not assigning Complainant overtime for the dates at issue are unworthy of belief. As such, we find that Complainant has established that the Agency's legitimate, nondiscrimination reasons were pretexts for discrimination based on her sex and in reprisal for her prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision. ORDER Unless otherwise specified, the Agency is ORDERED to undertake the following actions within one hundred and twenty (120) calendar days from the date this decision is issued: 1. The agency shall provide Complainant with overtime pay for March 2, 4, and 30, 2015, plus interest. The amount of overtime accrued by comparator MPC1 shall determine the amount of overtime Complainant would have worked during May 2 and 4, 2015. The amount of overtime accrued by comparator MPC2 shall determine the amount of overtime Complainant would have worked during March 30, 2015. 2. The Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R § 1614.110. 3. The Agency shall provide eight (8) hours of EEO training to S1 regarding his responsibilities under EEO laws, particularly Title VII and retaliation. 4. The Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s). 5. The Agency shall post a notice, as stated in the statement entitled, "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Post Office in Greensburg, Pennsylvania facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 6-29-18 __________________ Date 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. 2 The Commission has consistently held that the denial of overtime opportunities constitutes an adverse action. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160810 9 0120160810