Hipolito P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jan 13, 2016

0120142999 (E.E.O.C. Jan. 13, 2016)

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

Hipolito P.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142999

Agency No. 1G-337-0006-13

DECISION
Complainant filed an appeal from the Agency’s July 28, 2014 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it for de novo
review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Custodial Laborer at the Main Post Office Station in St. Petersburg,
Florida. On October 10, 2013, he filed an EEO complaint in which he alleged that since June
24, 2013, two Maintenance Operations Supervisors (MOS 1 and MOS 2) and a Labor
Relations Specialist (LRS) discriminated against him on the bases of race (White) and age (51)
by not allowing him to bid on custodial positions located at the Tampa Processing and
Distribution Center (TPDC). The Agency initially dismissed the complaint, but the
Commission ordered the Agency to process the complaint. Complainant v. United State Postal
Service, EEOC Appeal No. 0120140471 (March 21, 2014).

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.
0120142999

2
Neither MOS 1 nor MOS 2 was involved in the decision not to allow Complainant to bid on
positions at the TPDC. The LRS averred that the only employees from the St. Petersburg area
who were allowed to bid on positions located at the TPDC were those whose jobs were slated
to be eliminated, and that since Complainant was a Custodian, his job would not be affected.
The LRS’s affidavit testimony was confirmed by the District Complement Coordinator who
sent out the notices to the impacted employees. Investigative Report (IR) 106, 115-16, 118,
120, 143-44.

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). On June 12, 2014, Complainant requested a final decision on the merits of the
complaint. In accordance with Complainant’s request, the Agency issued its 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

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 those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order to prevail on his disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that MOS 1, MOS 2, and the LRS were
motivated by unlawful considerations of his race and age in not allowing him to bid on TPDC
custodial positions. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000). But when asked by the investigator why he believed that his race and age were the
reasons for being denied the opportunity to bid on TPDC positions, Complainant
acknowledged that he was not sure whether any of the named officials were aware of his age
and that he did not know whether they considered his race. IR 86, 90, 92. In light of
Complainant’s admission as well as his failure to present sworn statements from other
witnesses or documents that contradict the explanations provided by MOS 1, MOS 2, or the
LRS or which call their veracity into question, we agree with the Agency that Complainant
failed to establish the existence of an unlawful motive on the part of MOS 1, MOS2, or the
LRS with respect to his being denied the opportunity to bid on custodial positions at the TPDC
since June 24, 2013.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

0120142999

3
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
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
0120142999

4
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

January 13, 2016
Date