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

Equal Employment Opportunity Commission

Feb 22, 2019

0120170291 (E.E.O.C. Feb. 22, 2019)

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

Carter R.,1
Complainant,

v.

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

Appeal No. 0120170291

Hearing No. 420-2014-00114X

Agency No. 4G-350-0152-13

DECISION

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 September 16, 2016, final
order 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 order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01,
at the Agency’s Midtown Station in Mobile, Alabama. On November 14, 2013, Complainant filed
an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male),
age (58), and in reprisal for prior protected EEO activity when:

1. On August 29, 2013, during a route observation, Complainant’s supervisor (S1) told him
to disregard all safety precautions;

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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2. On August 30, 2013, S1 issued him a letter of warning (LOW) for failure to follow
instructions; and
3. On an unspecified date, S1 substituted a comfort stop with one of his 10-minute breaks.

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 requested a hearing. The AJ
found that, after viewing the evidence in a light most favorable to Complainant, a decision without
a hearing was appropriate as there were no genuine issues of material fact in dispute. The AJ issued
a decision without a hearing on September 2, 2016, finding no discrimination. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged. On appeal, Complainant reiterates his
contention that he was subjected to unlawful discrimination.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine issue of material fact. 29
C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth
in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, it is not
appropriate for an AJ to issue a decision without a hearing. In the context of an administrative
proceeding, an AJ may properly issue a decision without a hearing only upon a determination that
the record has been adequately developed for summary disposition. Petty v. Defense Security
Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC
Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing was
appropriate, as no genuine dispute of material fact exists. To prevail in a disparate treatment claim,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Construction Co. v.
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Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of
the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the
Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a prima
facie case of sex, age, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim (1), the record shows that on
August 29, 2013, S1 accompanied Complainant for a route observation. S1 states that during the
route observation, Complainant’s pace was slow and that she believed his performance would be
affected by his working so slowly. She further states that she instructed him to accelerate his
vehicle to the speed limit, but that he refused to do so and continued “just coasting [with] no sense
of urgency.” As to claim (2), the record shows that S1 subsequently issued a LOW, dated August
30, 2013, for failure to follow instruction, in response to the route observation of the previous day.
Specifically, the LOW states, among other things, that “you were given instructions…to accelerate
to or near the normal speed for the street you were traveling on. It took you nearly 4 blocks for
your vehicle to shift to gear due to the low speed of 10 to 12 miles. Throughout the day you never
accelerated to or near the posted speed limit, but rather coasted along.” Finally, as to claim (3), S1
states that Complainant took a 7-minute comfort break and she asked him whether he wished to
stay at that location to complete a 10-minute break, but he declined. S1 further states that, on that
date, he proceeded with the route and took his regular 10-minute break later in the day. We concur
with the AJ’s finding that Complainant failed to proffer any evidence, beyond his bare assertions,
to show that the Agency’s actions were motivated by discriminatory or retaliatory animus, or that
the Agency’s articulated reasons for its actions were pretextual.

CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are no
genuine issues of material fact. We further find that the AJ appropriately issued a decision without
a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s decision
and the Agency’s final order finding no discrimination is AFFIRMED.

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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

February 22, 2019
Date