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

Equal Employment Opportunity Commission

Jun 20, 2018

0120162484 (E.E.O.C. Jun. 20, 2018)

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

Harvey G.,1
Complainant,

v.

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

Appeal No. 0120162484

Hearing No. 570-2013-00549X

Agency No. 4K-300-0023-11

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated June 23, 2016, finding no discrimination
concerning his 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Full-Time City Letter Carrier, Level 4, at Peachtree City Post Office, Peachtree City, Georgia.
On June 16, 2011, Complainant filed his complaint alleging discrimination in reprisal for prior
EEO activity when he was issued a 14-day suspension, dated March 28, 2011, for failure to
observe safety rules and regulations.

In the complaint, Complainant also alleged five other claims concerning working conditions in
2010, and the August 10, 2010 notice of removal which was later reduced to a 7-day suspension.

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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On October 17, 2011, the Agency issued a final decision dismissing the complaint, including the
claim at issue (March 28, 2011 suspension), due to untimely EEO Counselor contact, for stating
the same claim that was previously raised which Complainant withdrew, and/or for failure to
state a claim, pursuant to 29 C.F.R. §§ 1614.107(a)(2) and (1). Complainant appealed. The
Commission, in EEOC Appeal No. 0120120638 (December 13, 2012), affirmed the Agency’s
dismissal of the five claims but reversed its dismissal of the instant claim at issue, i.e., the March
28, 2011 suspension. The Agency accordingly accepted and investigated the subject matter.

After completion of the investigation of the claim at issue, Complainant requested a hearing
before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency then
issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons
for its action, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged suspension. Complainant’s supervisor (S1) indicated that she issued
Complainant, a City Letter Carrier, the March 28, 2011 suspension at issue because on March
23, 2011, at 2:33 pm, an identified Police Officer reported to her that he just issued a speeding
citation to Complainant for driving 46 miles per hour (mph) in a 25-mph school zone and that
Complainant was rude to him. Complainant acknowledged that he was speeding because he was
running behind his delivery schedule.

S1 noted that when an investigative interview was conducted regarding the March 23, 2011
incident, Complainant indicated that he was driving at 35 mph and not 46 mph but he
nevertheless did not dispute the fact that he was speeding in a 25-mph school zone in his postal
service delivery vehicle.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. After a review of the record, we find
that Complainant failed to show that there were any similarly situated employees not in his
protected groups who were treated differently under similar circumstances. Based on the
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foregoing, we find that Complainant has failed to show that the Agency’s action was motivated
by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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)
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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

June 20, 2018
Date