Eric M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 23, 2016

0120140973 (E.E.O.C. Sep. 23, 2016)

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

Eric M.,1
Complainant,

v.

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

Appeal No. 0120140973

Hearing No. 420-2013-00016X

Agency No. 1G-361-0003-12

DECISION

On December 31, 2013, Complainant filed an appeal from the Agency’s December 2, 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 Distribution Operations Supervisor at the Processing and Distribution
Plant in Montgomery, Alabama. On May 17, 2012, he filed an EEO complaint in which he
alleged that the Distributions Operations Manager (DOM), with the tacit concurrence of the
Plant Manager (PM) retaliated against him for prior protected EEO activity by:

1. Issuing him a letter of warning on January 27, 2012;
2. Assigning him to supervisor nine sections; and
3. Denying opportunities to earn overtime pay.

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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Regarding the letter of warning, on January 13, 2012, Complainant and a subordinate got into
a verbal altercation in the presence of other employees in which they called each other liars.
The DOM issued letters of warning to both of them, with the concurrence of the PM.
Investigative Report (IR) 93, 103-15, 120-22. As to Complainant’s section assignments, the
DOM averred that Complainant was responsible for supervising three pay locations that
encompassed eight sections, four of which provided administrative support only, and that
Complainant had no more responsibilities than other supervisors. IR 94-96. Concerning his
overtime allegation, the DOM averred that overtime was utilized based on the needs of the
facility and that the majority of overtime was utilized in automation, an area in which
Complainant was not qualified. IR 96-99.

At the conclusion of the investigation, the Agency notified Complainant 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 February 23, 2013, motion for summary judgment over Complainant's objections,
and issued a decision on November 15, 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.

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 whether the DOM or the PM were motivated by
unlawful considerations of his previous EEO activity in connection with the incidents listed
above. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000). He must also submit evidence sufficient to raise a genuine issue of
material fact as to whether the actions of the DOM and the PM were harmful to the point that
they could dissuade a reasonable employee from making or supporting a charge of
discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact regarding motivation by evidence tending to show that the reasons articulated by S1 and S2
for the cuts to his work hours, overtime, or the disciplinary actions were pretext, i.e., not the
real reason but rather a cover for discrimination and reprisal. St. Mary’s Honor Society v.
Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses,
implausibilities, inconsistencies, incoherencies, 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. United States Postal Service, EEOC Appeal No.
0120060802 (November 20, 2007), request for reconsideration denied EEOC Request No.
0520080211 (May 30, 2008). When asked by the investigator why he believed that his
previous EEO activity was the motivating factor in the issuance of the letter of warning, his
supervisory assignments, and his lack of overtime assignments, Complainant responded that he
was the only supervisor who had filed an EEO complaint. IR 58, 63, 68. Beyond these
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assertions, Complainant has not submitted any sworn statements from other witnesses or
documents that contradict the explanations provided by the DOM or the PM 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 DOM and the PM in connection with the issuance
of the letter of warning issued to Complainant in January of 2012, Complainant’s section
assignments, and his lack of overtime assignments.

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:
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).
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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

September 23, 2016
Date