Fred S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Oct 16, 2018

0120182200 (E.E.O.C. Oct. 16, 2018)

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

Fred S.,1
Complainant,

v.

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

Appeal No. 0120182200

Hearing No. 430-2016-00032X

Agency No. 1K-291-0008-15

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 10,
2018, final order concerning an equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq.

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Labor Custodian at the Agency’s Processing and Distribution Center in Columbia, South
Carolina.

On April 13, 2015, Complainant filed an EEO complaint alleging discrimination by the Agency
on the bases of age (October 1954), race (African American), and in reprisal for previous EEO
activity when:

1. On December 5, 2014, Complainant was rated ineligible for the following positions:
MM-07, MPE-09, and BEM-09;

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.
0120182200

2
2. On January 28, 2015, Complainant was notified that his eligibility rating for MM-07
had been mistaken and corrected to reflect “ineligible”;

3. On April 3, 2015, and May 1, 2015, Complainant was denied higher level pay for five
hours of training;

4. During the weeks of April 11, 2015, and April 18, 2015, Complainant was passed over
for overtime; and

5. On April 24, 2015, Complainant was issued a 14-day suspension.

After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant timely
requested a hearing. On June 2, 2016, the Agency submitted a Motion for a Decision without a
Hearing, to which Complainant responded in opposition on June 16, 2016. On November 28,
2016, and January 3, 2018, the AJ denied the Agency’s motion in part and affirmed it in part.
Specifically, the AJ found that claims 1 and 3 would proceed to a hearing. The AJ dismissed claim
2 on the basis that it would be fully addressed through claim 1. Additionally, the AJ found that
claim 4 would only proceed to a hearing on the reprisal claim because that was the only basis on
which a prima facie case was established, and claim 5 would only proceed to a hearing on the race
and reprisal claims because a prima facie case of age had not been established. After the hearing
on the aforementioned portions of 1, 3, 4, and 5, the AJ issued a decision on April 23, 2018, in
which he found that Complainant had not shown that the Agency’s actions were motivated by
unlawful discrimination.

The Agency issued its final order fully implementing the AJ’s finding that Complainant failed to
prove discrimination as alleged. The instant appeal followed.
The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In
rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a summary judgment decision, and the decision itself, will both be reviewed
de novo).

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law.
0120182200

3
Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding
that the agency was motivated by discriminatory animus. Here, however, Complainant has failed
to establish such a dispute with respect to the matters on which the AJ granted summary judgment.
Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

Additionally, pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will
be upheld if supported by substantial evidence in the record. Substantial evidence is defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO
MD-110, at Chap. 9, at § VI.B.

Upon careful review of the AJ’s summary judgment decision and the evidence of record, as well
as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the
preponderance of the evidence did not establish that the Agency discriminated against
Complainant on the bases of race and age with respect to claim 4 and on the basis of age with
respect to claim 5. Regarding the AJ’s decision after a hearing, we conclude that substantial
evidence of record supports the AJ’s determination that Complainant has not proven
discrimination by the Agency as alleged.

Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision.

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.
0120182200

4
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.

0120182200

5
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

October 16, 2018
Date