0120170168
07-17-2018
Damion L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Damion L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120170168
Agency No. 1K271000114
DECISION
On October 3, 2016, 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 decision (FAD) 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 decision.
ISSUES PRESENTED
Whether the Agency properly found that Complainant was not discriminated against on the bases of race (African American), sex (male) and age (60), when, on September 27, 2013, he was moved from the shuttle assignment to the fork lift assignment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Handler, Equipment Operator, M-05 at the Agency's Greensboro Processing and Distribution Center (Greensboro PD&C) facility in Greensboro, North Carolina. The record reflects Complainant's duties included unloading bulk mail container shuttles with forklift equipment or pallet lift equipment, driving the equipment onto the trailer lift of containers, and proceeding to the destination for the containers. The job required zero percent physical requirements. Complainant reported doing this job on and off for more than twenty (20) years and daily for approximately the last ten (10) years. On or about September 27, 2013, he was moved to a forklift line position that required him to physically unload 3,000-pound bulk mail containers and 1,200 pound postcon mail containers by hand for three (3) hours a night. Complainant described the duties as being more demanding because he had to physically move the heavy containers to the doorway by hand for them to be picked up by an equipment operator.
On February 4, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of "Issues Presented" above. 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). In accordance with Complainant's request, the Agency issued a FAD to 29 C.F.R. � 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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 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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, sex, and age, record evidence supports the FAD's conclusion that he did not show that the Agency's reasons were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for changing Complainant's position, and that he failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
The record reflects that Complainant is a Level 5 power industrial truck (PIT) operator without specification as to what his bid job is. Based on this profile, Management is only required to ensure that he receives compensation at the Level 5 rate, not that he hold a specific position. Starting in 2013, the Greensboro Network Distribution Center (NDC) began to process the Greensboro P&DC's destination priority mail for their dispatches, instead of exclusively running standard or 3rd class mail. These additional duties were added because it became imperative that all mail be dispatched on time. The number of trips for NDC increased from seven to as many as ten tractor trailer loads of mail.
Complainant's first level supervisor (S1) testified that while on shuttle assignment, Complainant regularly only unloaded two trailers of mail from 10:30 p.m. to 4:30 a.m., leaving his partner responsible for casing the remaining trucks. Management frequently assigned additional people to clear the mail in time for dispatch. Complainant repeatedly demonstrated that he was not capable of completing the assigned task during his allotted shift, and he was advised that if he could not do the job he would be moved, or not placed in the shuttle assignment to begin with. Complainant was given approximately six months to improve his performance, and failed to do so, before being moved to the fork lift assignment.
Complainant fails to proffer any evidence to establish that the Agency's asserted reasons for moving his assignment were pretext for discrimination. Along with disagreeing with S1's description of the distinctions and similarities in the shuttle and fork lift assignments, Complainant contends that it is nearly impossible for two people to finish the loads in the allotted time without additional help. S1 stated that the shuttle assignment requires the person to be highly motivated to get the job done in the allotted amount of time, and he also acknowledged that there was an increase in the workload. It is clear from the record that Complainant did not demonstrate a willingness to put forth the extra effort required to complete the tasks of the shuttle assignment. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find there is no persuasive evidence of unlawful motivation in the instant matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly held that Complainant did not establish that he was discriminated against on the bases of race, sex, and age when he was moved from the shuttle assignment to the fork lift assignment.
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.
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
_7/17/18_________________
Date
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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