Bret B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 4, 2016

0120140946 (E.E.O.C. Feb. 4, 2016)

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

Bret B.,1
Complainant,

v.

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

Appeal No. 0120140946

Agency No. 1K-204-0007-13

DECISION

Complainant filed an appeal from the Agency’s December 3, 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. 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, finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Manager,
Maintenance Operations at the Agency’s National Distribution Center facility in Washington,
D.C. On April 19, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of age (47) and in reprisal for prior protected EEO
activity, when:

1. On March 25, 2013, Complainant was removed from automatic clock rings and
placed on manual clock rings.

2. On March 27, 2013, Complainant was not selected for Job Posting 68742906.

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.
0120140946

2

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). 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).

In its Final Decision, the Agency found that Complainant failed to establish a prima face case
of age or reprisal discrimination. However, the Agency continued in its Decision, to analyze
Complainant’s complaint as if he had done so.

With respect to Complainant’s claim regarding manual clock rings, the Agency found that
Complainant’s supervisor, S1, explained that he took the action described in Complainant’s
complaint because Complainant had not been arriving for work on time. S1 further explained
that no Agency policy mandated automatic clock rings and also that S1 had told Complainant
on multiple occasions that his attendance habits were unacceptable. Additionally, the Agency
noted that S1 explained that he likely told others, including the Office of the Inspector General
(OIG) that Complainant’s arrival times were being monitored. The Agency considered the
witness statements of W1 and W2, who told Complainant that they had been contacted by S1
regarding Complainant. E3, one of Complainant’s subordinate employees, remembers being
contacted by S1 regarding Complainant’s attendance, and also remembers Complainant
arriving late to the office but none of the specific dates that he did so.

With respect to Complainant’s nonselection claim, the Agency found that S1 interviewed
Complainant for the position. S1 explained that he was the selecting official and that he
selected another candidate, E1, for the identified position because E1 was the best qualified
candidate. S1 stated that Complainant was not chosen because of poor attendance.
Additionally, the Agency noted that all of the other candidates were older than Complainant

The Agency found no evidence that the Agency’s reasons were a pretext to mask
discrimination. The Agency’s Final 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”).
0120140946

3

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

In the instant case, we find the record supports the Agency’s Final Decision. We find, as did
the Agency, that the statement of E3, one of Complainant’s subordinate employees, confirmed
S1’s statement that Complainant arrives late to work on occasion. E3 did not provide specific
dates when she saw this happen, yet she describes those days specifically as the days when she
was handing out assignments. We find no evidence in the record to rebut E3’s observations.

With respect to the selection action, we find that all of the other candidates considered for the
identified position were older than Complainant and accordingly, Complainant did not establish
a prima facie case of age discrimination. Additionally, we find it reasonable for S1 to consider
Complainant’s attendance record in making his selection decision. We find that Complainant
did not show that more likely than not, he was subjected to age or reprisal discrimination.

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, finding no
discrimination.

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:
0120140946

4
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.
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
0120140946

5
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, Director
Office of Federal Operations

February 4, 2016
Date