Andres M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 2, 2019

0120181949 (E.E.O.C. Aug. 2, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Andres M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
(Northeast Area), Agency.

Appeal No. 0120181949

Agency No. 4A-088-0100-09

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
his 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 AFFIRMS the Agency’s final decision (FAD).

ISSUE PRESENTED

The issue presented is whether Complainant established that the Agency's proffered explanation
for its actions was pretext to mask discrimination based on his race and color.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Driver Safety
Instructor (DSI) in the Agency’s Central New Jersey District, at the Kilmer Processing and
Distribution Center (P&DC) in Edison, New Jersey. Report of Investigation (ROI), at 22.

In a letter dated June 16, 2009, Complainant was notified that, as a result of the closure of the
Central New Jersey District, his DSI position was no longer needed in the capacity in which he

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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was utilized. ROI, at 42. The letter noted that Complainant's position was scheduled to be
abolished. Id.

On June 24, 2009, the Area Human Resources Manager wrote a letter to the Northern Regional
Coordinator of the American Postal Workers Union, stating that three DSIs2 in the Central New
Jersey District would be excessed due to the closing of the Central District. Id. at 70. The letter
stated that the DSI function for the Northern District and the former portion of the Central District
would be performed out of the current Northern New Jersey District Office in Newark, New Jersey.
Id. On August 27, 2009, the Manager of Labor Relations of the Northern New Jersey District sent
Complainant another letter, writing that Complainant would be reassigned from his position as a
result of the closure of the Central New Jersey District. Id. at 71. On September 25, 2009,
Complainant was notified that his computer access would be terminated effective September 28,
2009, due the abolishment of his position. On November 20, 2009, Complainant was notified that
he was being reassigned to a DSI position in Trenton, New Jersey. Id. at 101.

Complainant averred that four African-American employees holding DSI positions in the Northern
New Jersey District were not fully qualified for their positions and should have been excessed and
removed from their positions before him and the two other DSIs of the Central New Jersey District.
Id. at 58. Complainant specifically stated that the four African-American employees did not have
Commercial Driver’s Licenses (CDLs), among other qualifications for the DSI position. Id.

On November 5, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Caucasian) and color (white) when, on June 17,
2009, he was notified that his position would be abolished, and by letter dated August 27, 2009,
he was notified that he was considered an impacted/involuntary excessed employee and would be
reassigned.

Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge. Complainant timely requested a hearing but subsequently
withdrew his request.3 Consequently, 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
him to discrimination as alleged.

2 The three excessed DSIs in the Central New Jersey District were Complainant (Caucasian) and
two other employees (both Caucasian).

3 In EEOC Appeal No. 0120152411, the Commission remanded Complainant’s case for
submission to the appropriate EEOC Hearings Unit. Complainant however subsequently withdrew
his hearing request and requested that the Agency issue a FAD.

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The Agency specifically found that Complainant did not establish a prima facie case of
discrimination on the bases of race and color. In so finding, the Agency noted that all comparators
whom Complainant cited did in fact have valid CDLs and were qualified for their respective DSI
positions, contrary to what Complainant contended. The Agency further noted that the cited
comparators were not impacted by the closure of the Central New Jersey District, as they worked
within the Northern New Jersey District, which did not close. The Agency stated that all the
comparators cited by Complainant were not similarly situated to him, as they worked in different
districts. The Agency found that Complainant did not present sufficient evidence to establish an
inference of discrimination, and therefore Complainant did not establish a prima facie case of
discrimination on the bases of race and color. The Agency further found that Complainant did not
establish that its legitimate, nondiscriminatory reasons were pretext for discrimination based on
race and color. The Agency observed that the Central New Jersey District closed due to a
Reduction-in-Force (RIF), and therefore Complainant interviewed for his current position in the
Northern New Jersey District. The Agency also observed that Complainant was part of the Central
New Jersey District that was selected by its headquarters to close, and therefore his position was
abolished. The Agency ultimately found that Complainant’s allegations of discrimination were
unsupported by the evidence in the record.

CONTENTIONS ON APPEAL

On appeal, Complainant, through his attorney, contends that he has shown that he has been treated
differently than individuals outside of his race and color.4 Complainant maintains that the cited
comparators, as noted above, did not have the minimum qualifications or the experience for the
DSI positions they held and obtained. He further maintains that, in excessing him instead of the
cited comparators, management violated the Collective Bargaining Agreement between the
Agency and the Union. Complainant argues that, on August 7, 2009, he and many other employees
were forced from their jobs, which violated the Agency’s policy with respect to excessing
employees. He also argues that he has established that the Agency’s legitimate, nondiscriminatory
reasons are pretext for discrimination. In that regard, Complainant maintains that the Agency
ignored its policies and regulations and treated employees outside of his protected classes more
favorably. Complainant moreover asserts that the Agency only cited to testimonial evidence and
not to any documented evidence in articulating its legitimate, nondiscriminatory reasons.

4 We note that, for the first time on appeal, Complainant also alleges discrimination in part due to
his age. Complainant specifically claims that he alleged age as a basis in his complaint. However,
a review of the record reflects that Complainant did not allege age as a basis in his EEO complaint
or in the ROI. Moreover, the Agency’s FAD did not include age as a basis in addressing
Complainant’s case. Therefore, we decline to address age as a basis of discrimination herein.

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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 he 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 n.13. 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).

After a review of the record, assuming arguendo that Complainant has established a prima facie
case of discrimination based on his color and race, we find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. The motor vehicle craft in the Central New
Jersey District was excessed due to the closing of the Central District, and the Agency’s
headquarters determined that the DSI function for the Northern District and the former portion of
the Central District would be performed out of the current Northern New Jersey District Office in
Newark, New Jersey. The Manager of Labor Relations of the Northern New Jersey District
explained to Complainant that he would be reassigned from his position as a result of the closure
of the Central New Jersey District.

This explanation meets the Agency's very light burden of production under Burdine. The burden
now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext
for discrimination. Burdine, at 256. In an attempt to show pretext, Complainant argues that four
African-American employees holding DSI positions in the Northern New Jersey District were not
fully qualified for their positions and should have been excessed and removed from their positions
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before him and the two other DSIs of the Central New Jersey District. Complainant asserted that
the four African-American employees do not have CDLs, among other qualifications for the DSI
position. Complainant stated that he was required to complete the CDL requirements to be awarded
the DSI position and had to be trained on every positional vehicle used by the Agency. He
maintained that, in excessing him instead of the cited comparators, management violated the
Collective Bargaining Agreement between the Agency and the Union.
Notwithstanding Complainant’s contentions, we find that Complainant has not established that the
Agency’s reasons were pretextual based on his race and color. In so finding, we note that the cited
comparators were not impacted by the closure of the Central New Jersey District, as they all
worked within the Northern New Jersey District, which did not close. Even assuming, without
finding, that the Agency violated the Collective Bargaining agreement, there is not sufficient
evidence to establish that discriminatory animus played a role in the Agency’s actions here. As
Complainant withdrew his request for a hearing, we do not have the benefit of an Administrative
Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based
on the weight of the evidence presented to us. Complainant bears the burden to prove, by a
preponderance of the evidence, that the Agency engaged in unlawfully discriminatory actions.
When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't
of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013); Brand v. Dep't of Agriculture,
EEOC Appeal No. 0120102187 (Aug. 23, 2012). Based on a thorough review of the record, we
find that Complainant did not establish that he was subjected to discrimination, as alleged.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s FAD.

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.
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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.
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

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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

August 2, 2019
Date