Felton A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Feb 1, 2016

0120143046 (E.E.O.C. Feb. 1, 2016)

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

Felton A.,1
Complainant,

v.

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

Appeal No. 0120143046

Hearing No. 551-2013-00102X

Agency No. 4E-570-0094-12

DECISION

Complainant filed an appeal from the Agency’s August 8, 2014, final order concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of 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 order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s facility in Billings, Montana. On October 22, 2012, Complainant filed an EEO
complaint alleging that the Agency discriminated against him and subjected him to harassment
on the bases of disability (back/neck), age (51 at the relevant time), and in reprisal for prior
protected EEO activity when:

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.
0120143046

2
1. on May 31, 2011, the supervisor, customer service (SCS) questioned him regarding
his leaving twenty minutes late on May 28, 2011, saying sarcastically that the
problem would be resolved in a month;
2. on June 6, 2011, SCS said “too bad, I’m doing it anyway” when Complainant told
him that changing the layout of his case would be unsafe for him;
3. on June 9, 2011, SCS refused to sign Complainant’s report of hazard, unsafe
condition or practice;
4. on June 18, 2012, during an investigative interview, SCS made a remark which
caused Complainant to believe he would be disciplined if he was injured on the job;
5. on June 18, 2012, the operations support specialist (OSS) ordered him to make a
statement against himself regarding the accident that was the subject of the LOW;
6. on July 5, 2012, SCS issued him a Letter of Warning (LOW) charging “failure to
report an accident” and threatened him;
7. on unspecified dates, SCS and the manager, customer service (M1) pushed
Complainant to complete the walking portions of his route;
8. on July 7, 2012, OSS told other employees that management had taken Complainant
off the street and brought him into the office for a meeting; and
9. on January 14, 2013, SCS told Complainant he was not allowed in the facility while
on sick leave.2

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). Complainant timely requested a hearing.
The AJ found that, after viewing the evidence in a light most favorable to Complainant, a
decision without a hearing was appropriate as there were no genuine issues of material fact in
dispute. The AJ issued a decision without a hearing on July 29, 2014, finding no
discrimination. 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. On
appeal, Complainant contends that the AJ erred in issuing summary judgment as there are
questions of material fact that require a hearing. Complainant also alleges that the AJ
improperly weighed evidence and reiterates his contention that the Agency subjected him to
unlawful discrimination.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.

2 With respect to claim (9), Complainant also raised the basis of sex (male) under Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
0120143046

3
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip.Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army, EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, and despite Complainant’s contentions on appeal, the
Commission finds that a decision without a hearing was appropriate, as no genuine dispute of
material fact exists. 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. 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
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. With respect to claim (1), the record shows that Complainant acknowledges that he
took 20 minutes of unscheduled overtime on May 28, 2011. Further, CSC states that it is
management’s role to maintain efficiency of operations and that this was the reason he needed
to speak to Complainant regarding the overtime. We find that Complainant has not shown that
CSC’s actions were motivated by discriminatory animus.

As to claims (2) and (3), the record shows that M1 instructed CSC to cut all route cases to
three pieces of equipment instead of four in order to make casing more efficient. M1 states that
this change was made to all routes and that it began with the lowest volume routes, including
Complainant’s route case. Complainant objected to his case being changed, and filed a report
of hazard, unsafe condition or practice on June 9, 2011, to prevent this alteration to his case.
0120143046

4
The record shows that as a result of Complainant’s objections, the Agency forwarded the
report to the District Reasonable Accommodation Committee, and Complainant’s case was not
altered. We find the Complainant failed to show that the Agency’s articulated reasons for its
actions are a pretext for unlawful discrimination.

With respect to claims (4), (5), and (6), the record shows that on June 8, 2012, Complainant
was exiting his vehicle when he was hit by a child on a scooter. Complainant states that at the
time the accident occurred, he did not believe he had been injured, so he continued to deliver
his route without reporting the incident. He further states that later in the day he began to feel
pain, but he waited until he returned to the facility before reporting the accident to
management. As a result of Complainant not immediately reporting the accident, in accordance
with Agency policy, management charged him with failure to report an accident and on June
18, 2012, Complainant was required to participate in an investigative interview into the matter.
Complainant alleges that following this investigative interview, SCS stated that Complainant
would be issued a letter of warning if he “got hurt [and] had to go to the hospital and cost the
[Agency] money.” The record shows that on that same date, OSS requested that Complainant
provide a written statement regarding the events of June 8, but Complainant initially declined
to do so. OSS then demanded that Complainant provide the statement as OSS states that he
believed it was mandatory. OSS states that when he reread the email he had received from the
district safety office he realized that a written statement was not mandatory, and immediately
apologized to Complainant for requiring the statement and returned all documents to him at
that time. The record shows that on July 5, 2012, Complainant was issued a letter of warning,
dated June 27, 2012, for failure to report an accident in violation of Agency policy. The record
also shows that Complainant confronted OSS regarding the issuance of the letter of warning,
stating “do you really want to do this? In my opinion, you guys are in violation of Title VII.”
M1 states that when he heard Complainant discussing the letter of warning with OSS, he
intervened and instructed Complainant to leave for the day. We find that even assuming these
incidents occurred as alleged, Complainant has not shown that it was related to any of his
protected bases. Complainant has not shown that he was treated differently than any similarly
situated persons. We further find that Complainant has not shown that the Agency’s
articulated reasons for issuing him the letter of warning are pretextual.

As to claim (7), the record shows that Complainant has permanent medical restrictions which
state that he is limited to continuous walking of no more than one hour, lifting no more than 30
pounds, and carrying no more than 10 pounds. The record further shows that management has
permitted Complainant to arrange his route so that he does not violate his medical restrictions.
This includes allowing Complainant to drive or use a scooter for portions of the route that
would normally be walked. We find that Complainant has not shown that the Agency violated
his medical restrictions or that the Agency’s actions, as alleged, were motivated by
discriminatory or retaliatory animus.

With respect to claim (8), Complainant states that on July 7, 2012, OSS told coworkers that
Complainant had been removed from the street to attend a meeting with management officials.
Both OSS and Complainant acknowledge that no such meeting occurred. We find that even
0120143046

5
assuming OSS made this untrue statement to coworkers, there is no evidence to show that his
actions were motivated by discriminatory or retaliatory animus. As to claim (9), the record
shows that Complainant was on sick leave from December 27, 2012, through January 13,
2013, and returned to duty on January 14, 2013. The record also shows that at some point
during this period, Complainant went to the facility to find out the job number for a route that
was up for bid. Complainant states that when he returned to duty on January 14, 2013, CSC
told Complainant that he should not have been in the facility when he was on sick leave and
that doing so was a violation of Agency policy. We find that even assuming CSC was incorrect
regarding Agency policy, as Complainant argues, he has not shown that CSC’s actions were
motivated by discriminatory or retaliatory animus.

Finally, insofar as Complainant is alleging that the claims addressed above constitute
harassment, the Commission finds that since he failed to show that the actions occurred as
alleged or were motivated by discriminatory animus toward his protected classes, he
necessarily also failed to establish that he was subjected to a discriminatory hostile work
environment. See Bennett v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000).
CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. In the absence of a
0120143046

6
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
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, Director
Office of Federal Operations

February 1, 2016
Date