Dino V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Apr 18, 2018

0120160700 (E.E.O.C. Apr. 18, 2018)

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

Dino V.,1
Complainant,

v.

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

Appeal No. 0120160700

Agency No. 1F-927-0048-15

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the November 16, 2015 final Agency 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Part-Time Regular
Mail Handler at the Agency’s Processing and Distribution Center in Santa Ana, California.
Complainant experiences complications from several physical conditions including seborrheic
dermatitis, ulnar neuropathy in his left hand, tinnitus, migraine, and high frequency sensorineural
hearing loss in his right ear. In addition, Complainant experiences complications from mental
conditions including primary insomnia with post-traumatic stress disorder and depression.

In February 2014, Complainant submitted a request to serve in a 204b (acting supervisor) detail
assignment to the then-Distribution Operations Manager. Complainant stated that he was told

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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that “everybody will have a chance; there will be a rotation every couple months.” In May 2014,
Complainant submitted a second request to the new Distribution Operations Manager (M1). On
December 1, 2014, Complainant sent a letter to the Senior Plant Manager requesting an
investigation into several alleged collective bargaining agreement violations. Additionally,
Complainant noted that he had requested a 204b detail assignment, but had not received an
opportunity yet. The Senior Plant Manager responded and advised Complainant to discuss the
204b matter with either his supervisors or managers. Additionally, on December 1, 2014,
Complainant sent another letter to the Santa Ana District Manager regarding the same matters he
raised with the Senior Plant Manager.

Complainant claimed that most of his requests were ignored without an official explanation;
however, on one occasion, M1 incorrectly informed him that he was not eligible because he was
a Part-Time Regular employee. Complainant stated that according to the collective bargaining
agreement, all Regular employees can be appointed to a 204b detail assignment; therefore, he
was eligible to serve in a 204b detail assignment.

On June 24, 2015, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of disability and in reprisal for prior protected EEO activity when, since
February 3, 2015 and continuing, he has been denied an acting supervisor detail.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not respond within the timeframe provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, M1 stated Complainant had
submitted a short letter and resume requesting a 204b detail assignment to the previous
Distribution Operations Manager. M1 confirmed that when she took over the position in May
2014, Complainant was on a waiting list. M1 explained that in June 2014, Complainant came to
her and stated that he was no longer interested in being considered for a position as an acting
supervisor, and asked to have his paperwork given back to him. M1 added that when she asked
him why, he said, “If you guys are not going to use me now then give me the paperwork back. I
am not interested anymore.” M1 averred she gave him what was given to her from the former
manager and he left her office. M1 stated that Complainant never requested a 204b detail or
expressed an interest to her since that day in June 2014, and she was not aware of Complainant’s
communications to other management officials expressing interest.

M1 affirmed that around late-March 2015, the Senior Distribution Operations Manager posted an
announcement on the time clocks and on the tour office door encouraging employees to apply if
they were interested. M1 added that management did not receive any indication of interest from
Complainant. M1 stated that she later met with Complainant after learning of his EEO complaint
and she offered him an acting supervisor detail because they were in need of supervisors. M1
affirmed that Complainant told her he was no longer interested in it.
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The Agency noted that three additional management officials reported receiving requests from
Complainant; however, they were not decisionmakers for the assignments, and referred the
requests to either Human Resources or M1. The Agency concluded that Complainant failed to
show that management’s reasons for its actions were pretextual. As a result, the Agency found
that Complainant had not been subjected to discrimination or reprisal as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant disputes management’s reasons for denying him a 204b detail
assignment. Complainant includes statements from co-workers that he claims contradict M1’s
explanations regarding the 204b process and availability. Complainant contends that
management was aware of his disabled veteran status and that it can be assumed that
management was motivated by his disabled veteran status in denying him a 204b detail
assignment opportunity. Complainant claims that there is no credible evidence supporting M1’s
statement that he withdrew his request for a 204b detail assignment and states that he continued
to seek the detail assignment after she falsely claimed that he had lost interest. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission notes that for the first time on appeal Complainant
submitted various statements from witnesses that he claims support his disparate treatment claim.
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 failed to make such a showing.
Accordingly, the Commission declines to consider this new evidence on appeal.

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

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Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. In particular, M1 explained that Complainant had
requested a 204b assignment, to the then-Distribution Operations Manager. ROI, at 122. M1
stated that she took over in May 2014, and Complainant was on a waiting list to be a 204b acting
supervisor. Id. M1 stressed that in June 2014, Complainant withdrew his request for a 204b
detail assignment opportunity and requested that she return his paperwork to him. Id. at 129.
M1 stated that Complainant never requested or expressed an interest in a 204b detail assignment
to her since that day. Id. M1 noted that the Acting Plant Manager posted an announcement for
204b acting supervisors in March 2015, but management did not receive any interest from
Complainant. Id. at 124. Several additional management officials noted that Complainant sent
letters to them expressing interest in a 204b detail assignment; however, they all indicated that
they had no role in selecting employees for those assignments and referred Complainant or his
correspondence to M1. Id. at 136, 148, 150, 152.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

In attempting to establish that the Agency’s reasons were pretextual, Complainant argued that
there was no waiting list for a 204b detail assignment as M1 claimed. Complainant stated,
however, in his May 23, 2014 letter to M1 and the former Distribution Operations Manager that
he was told that “everybody will have their chance; there will be a rotation every couple
months.” ROI, at 87. Thus, even assuming that there may not have been an official waiting list,
this indicates that there were at least several employees interested in serving as a 204b at the time
of his request. Additionally, Complainant disputed M1’s statement that he withdrew interest in a
204b assignment. Complainant has not disputed, however, that he failed to indicate to
management officials that he had any interest when the Senior Distribution Operations Manager
posted an announcement requesting interest in acting supervisor and manager positions in March
2015.

As Complainant did not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds no persuasive evidence that Complainant’s protected classes were a factor in any of the
Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by
a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the
Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that he was
subjected to discrimination or reprisal as alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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).
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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

April 18, 2018
Date