Bertram K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionJun 8, 20160120141014 (E.E.O.C. Jun. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bertram K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120141014 Hearing No. 470-2012-00132X Agency No. 1C401000612 DECISION Complainant filed an appeal from the Agency’s December 24, 2013, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transitional PSE Tractor Trailer Operator at the Louisville P&DC in Louisville, Kentucky. On January 31, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal (for prior protected EEO activity) when on or about November 23, 2011, he was issued a letter of termination for unsatisfactory safety record. At the conclusion of 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 (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision 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. 0120141014 2 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. 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”). Assuming that Complainant established a prima facie case of reprisal, we find insufficient evidence in the record to support the finding that the responsible management official’s (RMO) legitimate, non-retaliatory explanation for his decision to terminate Complainant was a pretext or otherwise motivated by retaliatory animus. Specifically, we note that RMO explained that Complainant was alerted to move three trailers. Complainant explained that he checked the dock plates and doors of all three trailers at the same time. He then moved the first two trailers. The undisputed record shows that contrary to the Agency’s written standard operating procedure (SOP), Complainant did not re-check the third trailer when he began the process of moving it.2 As he began to pull away from the dock door, Complainant heard the dock plate drop; he slammed on the brakes, exited the vehicle and found two all-purpose containers had fallen out of the trailer onto the ground. The record shows that this was Complainant’s second motor vehicle accident. Complainant was terminated for an unsatisfactory safety record. The record is devoid of pretext or retaliatory animus on the part of the responsible management official. CONCLUSION Based on a thorough review of the record, we AFFIRM the Final Agency Decision.3 2 The SOP states in part: “When a trailer move is called, the hustler driver will un-chock the wheels of the trailer and while doing so will look between the back of the trailer and the dock pad to insure the doors are closed and the dock plate is out.” 3 We note that Complainant failed to submit any argument on appeal. 0120141014 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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. 0120141014 4 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: ______________________________ Carl Carlton M. Hadden, Director Office of Federal Operations June 8, 2016 Date Copy with citationCopy as parenthetical citation