Felton Z.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionAug 24, 20160120142647 (E.E.O.C. Aug. 24, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felton Z.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142647 Hearing No. 451-2014-00062X Agency No. 4G-780-0154-13 DECISION On July 17, 2014, Complainant filed an appeal from the Agency’s July 14, 2014, final decision 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 Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff 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 decision. BACKGROUND Complainant worked as a Sales, Services and Distribution Associate at the Southeast Station Post Office in Austin, Texas. On August 20, 2013, he filed an EEO complaint in which he alleged that that the Customer Services Manager (CSM) and the Customer Services Operations Manager (CSOM) discriminated against him on the basis of disability (residual effects of lumbar strain) and personal genetic information by abolishing his bid position effective June 29, 2013. On May 30, 2013, he received a notice from a Customer Service Support Supervisor (CSSS) that his bid position would be abolished and reposted, and that he would be eligible to rebid on that position as well as others for which he was qualified. Investigative 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. 0120142647 2 Report (IR) 82-83, 110-11, 146, 148, 187. The same letter was sent to other employees. IR 216, 220, 224. At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Although Complainant initially requested a hearing, on June 3, 2014, the AJ remanded the complaint to the Agency for the issuance of a final decision after finding that Complainant had abandoned his discrimination complaint as well as his request for a hearing. In accordance with the AJ’s order, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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”). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would have to prove, by a preponderance of the evidence, that the CSM and the CSOM were motivated by unlawful considerations of his disability and personal genetic information when they abolished his bid position on May 30, 2013. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). He may do so by presenting evidence tending to show that the reasons articulated by those officials for abolishing his position were pretext, i.e., not the real reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). The CSM and the CSOM both averred that the decision to abolish and repost bid positions, including Complainant’s was made in accordance with the Agency’s organizational needs. They also averred that they had no knowledge or awareness of Complainant’s personal genetic information. IR 82, 89-90. When asked why he believed that his genetic information was a factor in the decision to abolish and repost his bid position, Complainant stated that the CSM did not like him and was actively seeking a way to have him transferred out of the Southeast Station facility. IR 61-63. His answer did not address the question that the investigator had put to him regarding his genetic information. When asked why he believed that his medical 0120142647 3 condition was a factor in the decision to abolish his bid position, Complainant responded that he was unable to work overtime or work as fast as management believed that he should. IR 63. Beyond his own assertions, however, Complainant has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the CSM or the CSOM, or which call their veracity into question. Accordingly, we agree with the Agency that Complainant failed to sustain his burden to prove the existence of a discriminatory motive on the part of either official with respect to the decision to abolish and repost his bid position. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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 0120142647 4 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 August 24, 2016 Date Copy with citationCopy as parenthetical citation