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

Equal Employment Opportunity Commission

May 23, 2018

0120161541 (E.E.O.C. May. 23, 2018)

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

Dalton E.,1
Complainant,

v.

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

Appeal No. 0120161541

Agency No. 4G-780-0079-14

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 March 22, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 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 City Carrier, CC-01,
at the Agency’s facility in Brownsville, Texas. On March 18, 2014, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of his race (Hispanic),
disability, age (62), and in reprisal for prior protected EEO activity when:

1. beginning in October 2013, management threatened that unless he retired, they
would “go after him”;
2. on October 22, 2013, management issued him a 7-day suspension;

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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3. on November 20, 2013, management issued him a 14-day suspension; and
4. on November 21, 2013, management issued him a letter of warning.

The matter was accepted as a mixed case and an investigation was undertaken. At the conclusion
of the investigation, Complainant filed an appeal to the Merit Systems Protection Board (MSPB).
The MSPB dismissed the appeal for lack of jurisdiction and Complainant pursued this matter as a
claim of discrimination under the Commission’s regulations. The Agency subsequently issued a
final decision, concluding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. This appeal followed.

Initially, we note that the record shows that Complainant did not provide an affidavit during the
investigation, despite multiple requests from the investigator. In his brief on appeal, Complainant
states that he provided an affidavit to the investigator after the completion of the report of
investigation, however, he has not provided any evidence as to the date this affidavit was received
by the Agency; nor has he provided any reason for his failure to respond to requests from the
investigator in a timely manner. We also note that, for the first time on appeal, Complainant
submits various statements, declarations, and depositions from witnesses that he contends support
his claim that he was subjected to a hostile work environment. As a general rule, no new evidence
will be considered on appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to or during the investigation. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015).
Here, Complainant has again provided no arguments or evidence to show that these materials were
not available during the investigation or any explanation as to why they were not provided to the
investigator during the investigative stage. Accordingly, the Commission declines to consider this
new evidence on appeal.

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”).

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 he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. 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.
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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 find that assuming, arguendo, Complainant established a prima facie case of race,
disability, age, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), Complainant has presented no arguments
or evidence, beyond his assertions in his formal complaint, to support his contention that
management officials threatened him or forced him to retire. Additionally, the management
officials at issue deny any such statements were made. With respect to claim (2), the record shows
that his first-line supervisor (S1), issued Complainant a notice of 7-day suspension for
unacceptable conduct/engaging in verbally abusive behavior. Specifically, the notice states that on
September 18, 2013, when S1 returned a message left by Complainant regarding pay, Complainant
said “you know what you son of a bitch, fuck you asshole.” Additionally, the record shows that
Complainant failed to report for a pre-disciplinary interview regarding this incident. As to claim
(3), the record shows that during a service talk on October 22, 2013, Complainant shouted “this is
bullshit” at management officials, which resulted in him being instructed to leave the workroom
floor and clock out. He was subsequently issued a notice of 14-day suspension for unacceptable
conduct/engaging in disruptive behavior during a stand up talk.

With respect to claim (4), the record shows that S1 issued Complainant a letter of warning on
November 21, 2013, for unsatisfactory performance/failure to work in a safe manner when he
“failed to notice a pothole” while loading his truck, which led to an injury to his leg. S1 states that
Complainant’s actions were in violation of Agency regulations and, therefore, warranted
disciplinary measures. We find that Complainant has not established that the Agency’s articulated
reasons for its actions were a pretext for unlawful race, age, disability, or reprisal discrimination.
In so finding, we once again note that Complainant did not provide any statements or evidence
during the investigation to counter the sworn affidavits of management officials and
contemporaneous statements by coworkers.

Regarding the claims in this complaint, we find Complainant has not shown that he was treated
differently than similarly situated employees.

Finally, insofar as Complainant contends that the incidents alleged constitute harassment based
upon his protected bases, the Commission finds that, since he failed to refute the legitimate,
nondiscriminatory reasons proffered by the Agency for its actions, he also failed to establish that
such actions were taken on the basis of his race, age, disability, or prior EEO activity. Accordingly,
Complainant failed to establish that he was subjected to a discriminatory hostile work
environment. See Complainant v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000).

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CONCLUSION

The Agency’s final decision finding 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.
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.
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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 23, 2018
Date