Coleman H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0120141006 (E.E.O.C. Nov. 23, 2016)

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

Coleman H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120141006

Hearing No. 560-2013-00115X

Agency No. 4E-640-0056-12

DECISION

Complainant filed an appeal from the Agency’s December 13, 2013, 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. The Commission deems the appeal timely and accepts it for de novo review.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Letter Carrier at the Main Post Office in Olathe, Kansas. On August
7, 2012, he filed an EEO complaint in which he alleged:

1. that on January 9, 2012, the Postmaster retaliated against him for prior protected EEO
activity by providing a negative position statement during an arbitration hearing on a
grievance that he had filed concerning a 14-day suspension; and

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. that on an unspecified date, the Acting Customer Services Manager (CSM) retaliated
against him for previous EEO activity by harassing him when he requested extra time to
make his mail deliveries.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Although Complainant
timely requested a hearing, the AJ assigned to the case granted the Agency’s July 15, 2013,
motion for summary judgment over his objections and issued a decision on December 4, 2013,
without holding a hearing. 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.

The Postmaster had issued Complainant a 14-day suspension for his act of insubordination
which had occurred on November 9, 2011. On that day, Complainant had clocked off four
hours before the end of his shift despite the Postmaster’s direct order that he finish his mail
deliveries. Complainant grieved the matter before an arbitrator. In a position statement dated
January 9, 2012, the Postmaster reported that he had denied Complainant’s leave request, that
he instructed Complainant to complete his deliveries, and that at twelve noon, Complainant had
clocked off and left the premises without authorization after being told that his leave request
had been disapproved. IR 80, 113-14. On April 4, 2012, the arbitrator issued a decision
denying Complainant’s grievance and upholding the suspension. IR 115-19.

On an unspecified date, Complainant finished casing his mail and loading it onto his delivery
truck. He then found that the truck would not start. He informed the CSM of the problem.
The CSM called the maintenance shop and requested that Complainant be given another
vehicle. According to the CSM, Complainant asked for extra time to complete his deliveries.
The CSM averred that he instructed Complainant to complete his deliveries on time, noting
that despite the mishap with his original delivery vehicle, he was still ahead of schedule by ten
minutes. The CSM denied Complainant’s assertion that he had yelled at him in the presence of
a customer. He also noted that Complainant did take extra time to complete the delivery, but
that no action was taken against Complainant. IR 71, 81.

ANALYSIS AND FINDINGS

In order to warrant a hearing on his reprisal claim, Complainant would have to present enough
evidence to raise a genuine issue of fact as to the Postmaster or the CSM was motivated by
unlawful considerations of previous EEO activity in connection with the incidents described in
his complaint. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). In
circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
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fact as to motive by presenting evidence tending to show that the reasons articulated by the
Postmaster for giving Complainant a negative report during the arbitration and the CSM for
publicly questioning Complainant’s request for extra time on his delivery route were pretext,
i.e., not the real reasons but rather a cover for retaliation. St. Mary’s Honor Society v. Hicks,
509 U.S. 502, 515 (1993).

Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (Nov. 20, 2007), request for reconsideration denied EEOC Request No.
0520080211 (May 30, 2008). If Complainant fails raise a genuine issue of material fact as to
the existence of retaliatory intent, no further inquiry would be necessary as to whether the
incidents complained of rise to the level of harassment or constitute separate acts of
discrimination under disparate treatment theory. Nicki D. v. Dept. of Veterans Affairs, EEOC
Appeal No. 0120133247 (Oct. 15, 2015).

When asked by the investigator why he believed that his previous EEO activity was a
motivating factor in the Postmaster’s presentation of management’s position statement at the
grievance arbitration, Complainant responded that the Postmaster wanted to portray him as a
troublemaker. IR 53. When asked a similar question regarding the CMS’s questioning his
need for extra time in making his deliveries, he replied that there could be no other reason than
his prior EEO activity. IR 56. Beyond these bald assertions, Complainant has not submitted
any sworn statements from other witnesses or documents that contradict the explanations
provided by the Postmaster or the CSM, or which call their veracity into question. We
therefore find, as did the AJ, that no genuine issue of material fact exists with respect to the
motivation of the Postmaster and the CSM in connection with the incidents described in this
complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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. The requests 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 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
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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

November 23, 2016
Date