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

Equal Employment Opportunity Commission

May 9, 2019

2019000662 (E.E.O.C. May. 9, 2019)

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

Cedrick S.,1
Complainant,

v.

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

Appeal No. 2019000662

Hearing No. 410-2015-00328X

Agency No. 1K302003315

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 7,
2018, final order concerning an equal employment opportunity (EEO) complaint claiming
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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Tractor Trailer Operator, GS 8, at the
Agency’s Atlanta Processing and Distribution Center in Atlanta, Georgia.

On May 5, 2015, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on his disability (ankle and knee injury) and reprisal for
prior protected EEO activity when:

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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1. since September 7, 2014, Complainant has been denied the chance to work
overtime on his non-scheduled days; and

2. on and since January 15, 2015, Complainant has been denied the chance to work
holiday overtime.

After an investigation on the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ).2 Complainant timely requested a hearing.
On July 16, 2018, the AJ issued an Order to Show Cause Why Summary Judgment Should not
be Entered, pursuant to 29 C.F.R. § 1614.109(g)(3). On August 24, 2018, the AJ issued a
decision by summary judgment, over Complainant’s objection, in favor of the Agency.3

On September 7, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of
no discrimination.

The instant appeal followed. On appeal, Complainant, through counsel, resubmits his arguments
stated in his July 30, 2018 response to the AJ’s show cause order.

ANALYSIS AND FINDINGS

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 103, 105 (1st Cir. 1988).

2 The report of investigation (ROI) indicates that Complainant did not complete or submit an
affidavit even through a certified mail receipt indicates that the affidavit request was delivered to
Complainant’s address on June 22, 2015, and a copy was sent to Complainant’s attorney via
regular first-class mail on June 10, 2015. The investigator submitted the ROI to the Agency on
July 30, 3015.

3 We note that the end of the AJ’s summary judgment decision states that Complainant’s
“complainant is dismissed.” However, based on the AJ’s analysis of the record regarding each
claim at issue, we construe the order to indicate that the AJ found no evidence of discrimination.
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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, summary judgment is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary disposition.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Complainant does
not assert, on appeal, any facts that are in dispute, nor does Complainant address the merits of the
AJ’s decision on appeal.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
met its burden, the 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. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

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.
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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

We agree with the AJ’s determination that Agency management officials articulated legitimate
non-discriminatory reasons for denying Complainant the opportunity to work overtime on his
holidays and non-scheduled days.

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Complainant’s supervisor (“S1”) testified that she denied Complainant the opportunity to work
overtime on his holidays and non-scheduled days because Complainant has a medical restriction
limiting him to driving 4 hours per day. S1 explained that Complainant has been on a modified
job assignment with the same work restrictions since 2008, and Complainant’s physician
indicated that his work restrictions were permanent. S1 further explained that all driving routes
are “6-8 hours in length,” and exceed Complainant’s medical restriction of driving no more than
4 hours. Consequently, Complainant cannot perform the duties of his occupational group –
Tractor Trailer Operator.

S1 clarified that Complainant is on a modified work assignment during his regular work days
because he did not request another position where he could perform duties within his work
restriction. S1 explained that while on modified assignment, Complainant is given “duties
outside of his position and craft to bring him up to his 40-hour work week guarantee.” However,
S1 indicated that while Complainant can perform duties outside of his position while on
modified assignment, Complainant “cannot cross paths and perform other duties after hours” if
he works overtime on a holiday or non-scheduled day “because other employees are entitled to
that work.” S1 stated that an “employee must be able to perform the duties of the overtime
assignments.” S1 also explained that Complainant is a full-time employee and is “guaranteed 8
hours if he works a holiday or non-scheduled day.” But, Complainant’s medical restriction
limited him to driving 4 hours, and S1 would have to pay another employee “for the same time
frame because [Complainant] would not be able to drive the full run.” Therefore, S1 stated that
“there are no assignments for [Complainant] within his restrictions in his occupational group and
tour on overtime and his non-scheduled days” and she did not schedule Complainant for
overtime for this reason. However, S1 indicated that Complainant has been allowed to work
overtime when his designated holiday fell on a day the post office was open and when the
Agency had “exhausted all PSE and Overtime desired list and cannot force a regular [employee]
to work on [Complainant’s] holiday or designated holiday.”

We note that Complainant stated in his response to the AJ’s July 16, 2018 show cause order that
some of the Tractor Trailer Operator routes could be completed in four hours. However,
Complainant conceded that he did not have any evidence to support this contention and
requested the opportunity to participate in “discovery concerning work assignments on holidays
to prove his position prior to responding to a Motion for Summary Judgment.”

The record includes a copy of an offer of modified assignment, accepted and signed by
Complainant on August 9, 2014. The offer indicates that Complainant’s driving was modified
to 4 hours per day.

A copy of Complainant’s duty status report, dated March 19, 2015, indicates that Complainant
sustained a work-related injury on May 4, 2008.

A physician’s note, dated March 19, 2015, indicates that Complainant can return to work with
restrictions consisting of “4 hours of driving with 8 hours sitting/standing.”

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We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on his disability or reprisal for prior protected EEO
activity.

The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.

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.
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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 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

May 9, 2019
Date