Billie M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

0120181755 (E.E.O.C. Aug. 29, 2019)

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

Billie M.,1
Complainant,

v.

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

Appeal No. 0120181755
Agency No. 4J530012217

DECISION

On April 30, 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
April 28, 2018, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 (FAD).

ISSUE PRESENTED

Whether the Agency properly found that Complainant was not subjected to discrimination on the
basis of age (53) when: from April 1, 2017 thru June 30, 2017, he was denied overtime
opportunities when he was not offered the maximum of opportunities, up to twelve (12) hours per
day and non-scheduled day overtime, while other carriers on the Overtime Desired List (OTDL)
were.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Arlington Heights-Elk Grove Village Branch Office facility in Elk Grove Village,
Illinois. The Agency’s FAD thoroughly discussed the facts in the record, and the instant decision
incorporates them as stated.

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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On September 13, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him as set forth above. 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. When
Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f),
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 followed.

On appeal, Complainant reiterates many of the arguments he raised during the investigation which
are addressed bellow. The Agency declined to file a response to Complainant’s appeal.

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

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a ADEA case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by
a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.

Assuming, arguendo, that Complainant established a prima facie case of discrimination on the
basis of age, the record evidence supports the FAD’s conclusion that he did not show that the
Agency’s reasons were pretextual. We find that the Agency articulated legitimate, non-
discriminatory reasons for its overtime selection decisions, and that Complainant failed to
demonstrate any conduct on the part of the Agency was based on discriminatory animus.

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The record establishes that full-day overtime was scheduled based on the needs of the service
component where overtime was being requested. Requested overtime required final approval from
the Postmaster and the Post Office Operations Manager (POOM). In order to be considered for
overtime, an employee needed to sign on to the OTDL. The OTDL was broken down into 10- and
12-hour categories, as well as, categories for those employees who only desired overtime on their
respective routes, and those employees who would take overtime on any route. Complainant’s
name was on the 12-hour list for those employees who desired overtime on their respective route.
Complainant’s supervisor (S1) testified that she offered overtime daily during the relevant period,
and that Complainant frequently rejected the assignments complaining of a hurt leg. According to
S1, she advised the Postmaster of Complainant’s repeated refusals and tried to ascertain whether
there was a specific overtime protocol that she should follow with respect to Complainant. S1
maintained that if there was any decision to offer Complainant less overtime, it was because of his
repeated refusal of overtime he was previously offered.

We find that any contention by Complainant that his age was a factor in denying him overtime
opportunities fails based on our review and comparison of the data regarding employees’ overtime
hours. The record reflects that one comparator ten years younger worked the same number of
hours as Complainant, one comparator approximately 18 years younger worked 18 hours more,
and one comparator that was ten years older worked 18 hours more than Complainant. We find
nothing in the record indicating that discriminatory animus based on age played a role in how
overtime hours were allocated.

In sum, our review of the record confirms the Agency’s assertion that its decisions were based on
its determination of how best to effectively manage the workplace and its assessment of
Complainant’s performance and conduct in the workplace. Nothing in the record, or submitted on
appeal by Complainant, demonstrates that management’s actions were in any way motivated by
discriminatory animus. The Commission has long held that an Agency has broad discretion to set
policies and carry out personnel decisions and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16,
1997). We find no evidence of unlawful motivation on the instant facts.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the FAD properly held that Complainant did not
establish that he was discriminated against based on age when from April 1, 2017 thru June 30,
2017, he was denied overtime opportunities.

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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.

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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
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 29, 2019
Date