0120160644
02-09-2018
Gregg B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gregg B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120160644
Agency No. 4F-900-0149-15
DECISION
On November 10, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 26, 2015 final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
On December 8, 2014, Complainant began employment with the Agency as a City Carrier Assistant 1 (CCA) at a post office in Pacific Palisades, California. Effective February 13, 2015, during his probationary period, the Agency removed Complainant from employment, citing "failure to meet requirements of your position," "failure to follow instructions," and "poor work performance" as the reasons. On May 26, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), and color (white) when:
1. from December 2014 to February 7, 2015, the facility Postmaster (S1) (non-Hispanic, male, black) would yell at him and threaten to fire him daily, which created a hostile work environment,
2. between December 2014 and February 7, 2015, S1 changed Complainant's clock rings to show that Complainant returned from his route at an earlier time than he did, and
3. on February 7, 2015, S1 removed Complainant from Agency employment.
Complainant stated that the Agency gave him only one day of on-the-job training before it gave him a route to work, and that was insufficient training. Also, Complainant stated that only one CCA has survived under S1's supervision and that CCA is African-American. The Agency investigated Complainant's claims.
Investigation
During the EEO investigation, S1 stated that he did not threaten Complainant but rather had frequent conversations with Complainant about his assignment and his ability to perform his job. S1 stated that Complainant believed he was above performing his duties to Agency expectations. S1 stated that the Agency provided Complainant an On-the-Job Instructor and 40 hours of training his first week on the job. S1 stated that Complainant was hired during peak season (the holidays) which meant mail volume was up. S1 stated that it took Complainant eight hours to perform three hours of work, which was not efficient. S1 stated that he usually gave first evaluations after thirty days, but there were enough concerns about Complainant's performance that he gave him a special evaluation assessment on January 2, 2015.
S1 stated that each carrier is responsible for clocking in and out, and that he did not change Complainant's clock rings. S1 stated that he is the Department Head and he made the decision to remove Complainant. S1 stated that Complainant was not agreeable to learning, thought he knew more than experienced carriers, and did not listen, so experienced carriers began refusing to train Complainant. S1 stated that Complainant was given every opportunity to learn his craft. S1 stated that there was an occasion where Complainant and another carrier had 100 packages to deliver and he heard that Complainant left the facility at 10:00 a.m. and was out delivering until 1:30 a.m. S1 stated that the Agency gave Complainant the opportunity to resign but he refused. S1 stated that another CCA resigned the day before the Agency terminated Complainant. S1 stated that there was one CCA, who is African-American, who became a Regular Carrier but many CCAs quit.
Post Investigation
Following 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 or an immediate final agency decision. On September 21, 2015, Complainant requested the latter. In accordance with Complainant's request, on October 26, 2015, the Agency issued a final decision. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The decision stated that Complainant was unable to meet the performance requirements of his position, was counseled on his deficiencies, and ultimately removed during his probationary period. The decision found that Complainant failed to show pretext. Further, the decision found that Complainant failed to show that the alleged actions rose to the level of a hostile work environment. The instant appeal from Complainant followed.
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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. S1 stated that he did not harass or threaten Complainant, but did speak with him frequently to ensure that he knew the Agency's expectations for his work and that he could meet those expectations. S1 stated that Complainant was not receptive to training and that experienced carriers no longer wanted to train him. S1 stated that Complainant could not meet the expectations of the CCA position and was given an opportunity to resign. He noted that many others have resigned from the CCA position. S1 stated that Complainant declined to resign and he removed him from employment during his probationary period due to poor performance. Further, S1 stated that he did not change Complainant's clock rings as alleged.
We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes. Further, to the extent Complainant alleged that the actions discussed in (1) through (3) also created a hostile work environment, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that those actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
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).
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
February 9, 2018
__________________
Date
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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