Brenton W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 20160120142200 (E.E.O.C. Mar. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brenton W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120142200 Hearing No. 560-2014-00040X Agency No. 1G-731-0002-13 DECISION Complainant appeals to the Commission from the Agency’s final decision dated April 21, 2014, finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding of no discrimination. BACKGROUND In his complaint, dated March 14, 2013, Complainant alleged discrimination based on race (Asian), color (brown), religion (Islam), national origin (India), and sex (male) when: On January 9, 2013, he received a notice of separation dated January 7, 2013,2 for unacceptable performance. 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. 2 We note that the notice of separation is erroneously dated January 7, 2012, and it should have been dated January 7, 2013. The parties do not dispute this. 0120142200 2 After completion of the investigation of the complaint, Complainant requested a hearing but later withdrew the request. The Agency thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incident. During the relevant time period at issue, Complainant was an Operational Industrial Engineer, EAS-12, at the Agency’s Oklahoma Plant & Distribution Center in Oklahoma City, Oklahoma. The record indicates that Complainant was assigned to this position on September 9, 2012, with a six month probationary period. Complainant claimed that he was issued the notice of separation at issue dated January 7, 2012, during his probationary period. Complainant’s manager stated that Complainant was issued the notice of separation at issue due to his unacceptable performance during his probationary period. Specifically, the manager indicated that: Complainant failed to report to work as he was instructed in accordance with his schedule of 9:30pm to 6:00am on a number of occasions in October - December, 2012; he unilaterally changed without previous authorization his reporting tour to T2 on a few occasions in December, 2012; he failed to perform, as instructed, a daily search for political mail and reply with his findings in November, 2012; and he failed to complete his assigned training modules. Complainant acknowledged that he received a performance review on October 31, 2012, with the lowest rating in every category. With regard to his work schedule, Complainant indicated that he believed that his position was flexible but provided no evidence to support his belief. The manager indicated that he clearly communicated to Complainant about his work schedule of 9:30pm to 6:00am in September, 2012, and again early October, 2012. Complainant does not dispute the foregoing statement. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Although Complainant claimed that other employees were allowed to set their own schedules, the Agency indicated that those employees were permanent employees and not a probationary employee, as he was. After a 0120142200 3 review of the record, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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. 0120142200 4 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 March 29, 2016 Date Copy with citationCopy as parenthetical citation