Antione H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

0120181360 (E.E.O.C. Aug. 7, 2019)

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

Antione H.,1
Complainant,

v.

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

Appeal No. 0120181360

Agency No. 4C-1400-01116

DECISION

On March 12, 2018, 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
February 23, 2018 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., 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. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Business Mail Entry
Unit (BMEU) Technician at the Agency’s LaSalle Post Office in Niagara Falls, New York.
Complainant’s first-level supervisor (S1) was a Delivery and Customer Service Supervisor.

On April 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Asian), national origin (Vietnamese), disability (Heart
condition, Diabetes, Post Traumatic Stress Disorder), age (62), and reprisal for prior protected
EEO activity (February 2015 complaint) 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. since November 28, 2015 and ongoing, management assigned Complainant
more strenuous work than his coworkers,
2. about January 4, 2016, S1 yelled at him about using a handheld scanner.

The Agency accepted incident (1) for EEO investigation and dismissed incident (2) for failure to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).

During the EEO investigation, Complainant stated that managers knew that he had heart surgery
in 2006, but never asked him to provide medical documentation related to work restrictions.2
Complainant stated that he assumed that management would not assign him the hardest and/or
heaviest tasks because they were aware of his heart condition.3 Complainant stated that
management brushed his health concerns to the side because he always performed the job well
and thoroughly. Complainant stated, as a BMEU Technician, he had to verify mailers’ discount
claims for large volume mailings and move large pallets of verified and paid-for mail into a
trailer at the rear dock. Complainant stated that he now tires very quickly. Complainant stated
that management should have considered his heart condition when assigning him duties from
coworkers.

S1 stated that Complainant transferred to Lasalle Post Office about 2010. He stated that he was
unaware of Complainant having a medical condition or related work restrictions. S1 stated that
management assigned Complainant duties for the position on which he voluntarily bid and, while
on overtime, tasks for mail distribution and dispatch. S1 stated, “[a]ssignments are based on
availability and needs of the service.” S1 stated the only disagreement he and Complainant had
was regarding use of a handheld scanner to scan parcels, which resulted in double handling. S1
stated that he asked Complainant to scan parcels using a Passive Adaptive Scanning System
(PASS) machine like every other clerk. S1 stated that he is not aware of management assigning
Complainant his coworkers’ duties.

The Niagara Falls Postmaster (S2) stated that Complainant is on the Overtime Desired List
(OTDL) and management assigns him overtime work when he is available to work overtime
based on his current bid schedule. Management asked for assistance with clerk duties during
overtime.

In pertinent part, the investigative record contains the documents that follow.

▪ 2015 Clerk/Custodian 4th Quarter Overtime Sign-up list, containing
Complainant’s name handwritten in cursive for partial overtime and non-
scheduled day overtime.

2 Complainant transferred to the Niagara Falls Post Office in May 2010.
3 Complainant stated that S1 worked at a prior facility with him and Complainant’s coworkers
and friends informed S1 about his heart surgery.
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▪ 2016 Clerk/Custodian 1st Quarter Overtime Sign-up list, containing
Complainant’s name handwritten in cursive for partial overtime and non-
scheduled day overtime.

Following the EEO 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
(AJ). Complainant initially requested a hearing but subsequently withdrew his request.
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. The instant appeal from Complainant followed.

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

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, he
must first establish a prima facie case 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, non-discriminatory reason for its actions. See Texas Department of
Community 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

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, non-discriminatory 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
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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).

Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination
based on race, national origin, disability, age, and reprisal, the Agency articulated legitimate,
nondiscriminatory reasons for the actions alleged. We find further that Complainant failed to
show, by a preponderance of the evidence, that the articulated reasons are a pretext for
discrimination.

We find that Complainant has not shown that the Agency assigned Complainant more strenuous
work than his coworkers or that the Agency was aware that it should not assign Complainant
strenuous work. Complainant stated that he had heart surgery in 2006, while he worked at
another postal location, and that LaSalle management was aware of his surgery. Complainant
transferred to LaSalle four years after his heart surgery, in 2010. Complainant assumed that
management would assign him different work because they were aware of his age and his heart
surgery. That would have required treating him differently based on his protected classes.
During the period at issue, the Agency assigned Complainant work consistent with his bid
position and his request for overtime on the Clerk/Custodian OTDL. If Complainant required
adjustments at work due to a medical condition, he had the right to request those changes
verbally or in writing to initiate the informal, interactive process with the Agency. The record
does not reveal that occurred here. Further, S1 stated that he and Complainant had a
disagreement about the use of a handheld scanner, which caused double handling, rather than use
of the PASS scanner like other clerks. Based on the circumstances herein, we cannot find the
Agency’s actions were based on discriminatory motives.

CONCLUSION

After thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.

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.
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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.

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

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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

August 7, 2019
Date