Cletus W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019002982 (E.E.O.C. Dec. 18, 2019)

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

Cletus W.,1
Complainant,

v.

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

Appeal No. 2019002982

Hearing No. 560-2017-00196X

Agency No. 1E-641-0032-16

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 November 20, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Support
Employee (PSE), Position Level 6/A, at the Agency’s Kansas City Processing and Distribution
Center in Kansas City, Missouri. Complainant stated that he heard that a coworker (CW) had been
talking about him, and on or about July 19, 2016, Complainant asked CW if it was true.
Complainant stated that CW denied it, became hostile towards him, and called the Postal Inspector
General to report that Complainant had threatened him. Report of Investigation (ROI) at 23,13.
Complainant stated that after this encounter, the Manager, Distribution Operations (MDO)
reassigned him out of the Express Mail Unit on July 19, 2016. ROI at 64-5.

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 November 14, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), and color (black), and in
reprisal for protected EEO activity when on July 19, 2016, he was reassigned out of the Express
Mail Unit, after a confrontation with CW.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing but subsequently withdrew his request. Consequently, the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency found that Complainant did not establish a prima facie case of discrimination based
on race or color, or in reprisal for protected EEO activity, when he was reassigned on July 19,
2016. However, the Agency assumed, for the sake of argument, that Complainant had established
a prima facie case of discrimination, and found that management officials articulated legitimate,
nondiscriminatory reasons for reassigning Complainant. The Agency noted that MDO stated that
Complainant was not moved out of the Express Mail Unit and continued to work there following
the incident. MDO added that as a PSE, Complainant provided supplemental assistance and would
be moved first, prior to moving regular employees. A Supervisor, Distribution Operations (SDO)
stated that PSEs are moved based on the workload. SDO added that it made sense to rotate the
PSEs into the Express Mail Unit because it gave them a chance to work earlier hours and receive
higher pay.2

The Agency then found that Complainant did not provide sufficient evidence to show that the
reasons were pretext for discrimination. The Agency noted that the record showed that PSEs are
not guaranteed any assignments, and that they are trained and moved around based on occupational
needs. The decision concluded that Complainant did not prove that the Agency subjected him to
discrimination as alleged.

ANALYSIS AND FINDINGS

Standard of Review

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 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”).

2 SDO stated that Express Mail clerks are paid at a level 7 rate, not level 6. ROI at 86.
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Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

In this case, we find that Complainant did not establish a prima facie case of discrimination based
on race or color, or in reprisal for protected EEO activity. Complainant may establish a prima facie
case of discrimination based on race and color by providing evidence that: (1) he is a member of
a protected class; (2) he suffered an adverse employment action; and (3) either that similarly
situated individuals outside his protected class were treated differently, or other circumstances
surrounding the adverse employment action give rise to an inference of discrimination. McDonnell
Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett
v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004) (internal quotation marks omitted).

We find that Complainant is a member of a protected class based on his race and color, and that
he suffered an adverse employment action. However, Complainant has not shown that similarly
situated employees, outside of his protected categories, were treated differently for engaging in
similar conduct. Among other things, to be considered “similarly situated,” the comparator must
be similar in substantially all aspects, so that it would be expected that they would be treated in
the same manner. See Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001)
reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). Complainant provided the
names of four comparators who were not moved following confrontations. However, we note that
two of the named comparators held different positions of “Parcel Post Dist-Machine.” ROI at
174,191. MDO stated that they were regular employees, who cannot be moved. ROI at 79-80. In
addition, we note that Complainant stated that CW was also a regular employee. ROI at 17. The
other two comparators were PSEs; however, the record shows that they did not engage in similar
conduct. MDO stated that he was not aware of any confrontation between the two, and SDO stated
that the comparators had a misunderstanding, and that it was not a serious situation. ROI at 77-
8,88-9. We also find that Complainant did not present any other evidence that raises an inference
of discrimination based on race or color.

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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). Here, there is no evidence that Complainant engaged in any EEO activity, prior to his
current case, and the record shows that Complainant did not initiate this complaint until July 27,
2016, which was after the reassignment. ROI at 15. As such, we find that Complainant did not
establish a prima facie case of discrimination based on race or color, or in reprisal for protected
EEO activity. Even if we found that Complainant had established a prima facie case on all bases,
we find that Complainant failed to show by a preponderance of the evidenced that the Agency’s
legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final decision finding no discrimination.

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

December 18, 2019
Date