Booker P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120172055 (E.E.O.C. Nov. 21, 2018)

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

Booker P.,1
Complainant,

v.

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

Appeal No. 0120172055

Agency No. 4G-780-0211-16

DECISION

On May 22, 2017, 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
May 8, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Sales &
Services Associate at the Agency’s Post Office in Beeville, Texas.

Complainant indicated that on July 29, 2016 and September 26, 2016, the Postmaster
(Postmaster1) mandated that he work overtime in lieu of a junior employee (Junior Employee)
and a Postal Support Employee (Support Employee). On September 19, 2016, Postmaster1 was
out on leave. Another Postmaster (Postmaster2) mandated that Complainant had to work
overtime rather than ordering the Support Employee.

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 October 12, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when:

1. On July 29, 2016, Complainant was mandated to work overtime in lieu of the
Junior Employee.

2. On September 19, 2016 and September 26, 2016, Complainant was mandated to
work overtime in lieu of the Support Employee.

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). 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 him to discrimination as alleged.

Complainant appealed asserting that he had established a prima facie case of unlawful retaliation.
Complainant argued that he engaged in five prior EEO complaints and the Postmaster1 was
involved in his prior EEO complaints. He indicated that after he engaged in prior protected
activity, he was required to work overtime despite not signing the overtime desired list.
Complainant also argued that Postmaster1 failed to provide the Junior Employee with the
necessary training in a timely manner to work overtime. Complainant believe that Postmaster1
did so to adversely affect him by forcing Complainant to work overtime despite his desire to
refrain from working overtime. As for the Support Employee, Complainant again argued that
Postmaster1 failed to provide her with the necessary training for the Support Employee to
become proficient to work the Window. As a result, Complainant was again adversely affected
and forced to work overtime. As such, Complainant claimed that the Agency’s decision was
incomplete and distorted the facts. Therefore, Complainant argued that the Agency’s legitimate,
non-discriminatory reasons were pretext for discrimination. Therefore, Complainant asked that
the Commission find in his favor.

The Agency responded to the appeal by asserting that its final decision addressed all the relevant
issues. As such, the Agency asked that the Commission affirm its final decision finding no
discrimination.

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she 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. 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, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff’d., 545 F.2d 222 (1st Cir. 1976), and Coffman v.
Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may
establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently, he 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 (Sept. 25, 2000).
The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action. In order to satisfy his burden of proof, Complainant
must then demonstrate by a preponderance of the evidence that the agency’s proffered reason is a
pretext for disability discrimination.

Upon review of the record, we find that Complainant did not establish a prima facie case of
retaliation regarding September 19, 2016. Complainant did not indicate whether Postmaster2
knew of his prior protected EEO activity. Further, Postmaster2 stated in his affidavit that he was
not aware of Complainant’s prior EEO activity. Therefore, we conclude that Complainant has
not established that he was subjected to unlawful retaliation with respect to the mandate to work
overtime on September 19, 2016.

Therefore, we turn to Complainant’s claim of unlawful retaliation regarding overtime on July 29,
2016 and September 26, 2016. 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.
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Where the Agency has articulated a legitimate, nondiscriminatory 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. The Postmaster1 averred that the Junior Employee had begun working at
the Agency on July 23, 2016, and was not trained or ready to work the Window on July 29,
2016. Therefore, she asked Complainant if he could cover the Window to serve the customers.
She noted that it was busy at that time and they needed his help. She also noted that the Agency
does not want anybody to work overtime. However, there are times when they need help
completing all the needed operations. Postmaster1 averred that on September 26, 2016, they
needed help covering the Window. She noted that the Support Employee worked until 5:54 p.m.
She noted that the need arose on a Monday which is their busiest day. Postmaster1 noted that
she needed Complainant to help because he had more experience. We find that the Agency
provided legitimate non-discriminatory reasons for its decision to mandate Complainant to work
overtime on July 29, 2016 and September 26, 2016.

We turn to Complainant to establish that the Agency’s reasons were pretext for discrimination.
Complainant asserted on appeal that Postmaster1 failed to adequately train the Junior Employee
or the Support Employee on the Window to require them to work overtime. Complainant argued
that the reason for the failure to train the employees was to force Complainant to work overtime
in retaliation for his prior protected EEO activity. We note as to the event on July 29, 2016, the
Junior Employee had only started days earlier with the Agency. We find that Complainant has
not substantiated his claim beyond making a bald assertion. Therefore, we conclude that
Complainant has not shown that the Agency subjected him to unlawful retaliation 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 final decision.

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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. 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.
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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

November 21, 2018
Date