Jed T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 29, 2016

0120142690 (E.E.O.C. Aug. 29, 2016)

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

Jed T.,1
Complainant,

v.

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

Appeal No. 0120142690

Hearing No. 510-2013-00206X

Agency No. 4B-006-0069-12

DECISION

Complainant filed an appeal from the Agency’s June 30, 2014, final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 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 order.

BACKGROUND

Complainant had formerly worked for the Agency as a Mail Processor at its Processing and
Distribution Center in San Juan, Puerto Rico. On November 19, 2012, he filed an EEO
complaint in which he alleged that a District Human Resources Manager (DHRS) and the
Center’s Human Resources Manager (HRM) had discriminated against him on the bases of
national origin (Hispanic), disability (depression, long-term degenerative effects of injury to
lower back), and in reprisal for prior EEO activity by terminating him on September 26, 2012,
and by failing to correct his salary history to reflect that he had been promoted after sustaining
his injury but before he was transferred to the rolls of the Office of Workers’ Compensation
(OWCP).

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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Complainant sustained an on-the-job back injury in December 2004, and in March 2006, he
was determined by the Office of Workers’ Compensation to be totally disabled and unable to
perform not only the essential functions of his position, but any work. Investigative Report
(IR) 193-94. A report from an examining physician dated March 8, 2011, indicated that
Complainant’s condition had not improved, and that he remained permanently disabled and
unemployable. IR 95-96, 99. An SF-50 dated January 31, 2012, indicated that Complainant’s
last day in pay status was October 32, 2008. IR 126. Complainant also presented a letter from
his treating psychiatrist indicating that he suffered from major depressive disorder. IR 91.

By letter dated January 18, 2012, Complainant was notified by the DHRS that because he had
been on the rolls of the Office of Workers’ Compensation for more than one year and had
consequently been continuously absent from duty, he would be separated due to inability to
perform the essential functions of his position. IR 78, 152, 154, 170, 201. The separation
was delayed until September 28, 2012, in order to give the Human Resources Manager (HRM)
at the Center time to make retroactive corrections to his pay. IR 88-89, 99. The HRM
acknowledged that he and Complainant had entered into an EEO settlement agreement in
November 2009, concerning salary adjustments, and that once those adjustments had been
made and verified as correct, the separation action was cleared to go forward. IR 79-80, 98,
101, 103-09, 127-46, 157, 172-73, 178-80, 195. According to an SF-50 dated April 26, 2008,
Complainant’s position had been upgraded. IR 127.

At the conclusion of 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 (AJ). Although Complainant timely requested
a hearing, the AJ assigned to the case granted the Agency’s July 11, 2013, motion for
summary judgment over Complainant's objections, and issued a decision on June 13, 2014,
without holding a hearing. The Agency subsequently issued a final order adopting the AJ’s
finding 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 making
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on his disparate treatment claim, Complainant
would have to present enough evidence to raise a genuine issue of fact as to whether the DHRS
and the HRM were motivated by unlawful considerations of his disabilities, national origin, or
previous EEO activity in connection with the incidents described in the aforementioned
complaint. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000).

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In this case, the Agency presented the affidavits of the DHRS and the HRM, together with
extensive documentation of both the separation action and the Agency’s efforts to make
retroactive adjustments to Complainant’s salary. Nevertheless, Complainant can still raise a
genuine issue of material fact regarding the motivations of the DHRS and HRM by presenting
evidence tending to show that the reasons that they articulated for terminating him and for not
making retroactive adjustments to his salary were pretext, i.e., not the real reason but rather a
cover for discrimination and reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515
(1993).

Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the Agency’s proffered legitimate reasons for its action that
a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S.
Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration
denied EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include
discriminatory statements or past personal treatment attributable to those responsible for the
personnel action that led to the filing of the complaint, comparative or statistical data revealing
differences in treatment across various protected-group lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal
Service, EEOC Appeal No. 0120141697 (Nov.12, 2015).

The AJ found that Complainant had been on the OWCP rolls for almost four years prior to his
separation, and that he was totally disabled and unable to perform the essential functions of his
position. Complainant himself admitted that he could not do the job with or without reasonable
accommodation, and that he neither requested an accommodation nor sought out the District
Reasonable Accommodation committee. IR 77. When asked why he thought that his
separation was discriminatory, he responded that because he was Hispanic, he had language
difficulties with the Human Resources and Labor Relations offices, that the DHRS and HRM
made comments that he was senile and only wanted money, and that three employees who
were disabled were not separated. IR 78, 80. The DHRS and the HRM averred that they had
initiated disability-related separations for ten other employees, including the three individuals
that Complainant identified as comparatives. IR 156, 162-64, 171, 175-76, 203-36. They
likewise denied making any derogatory comments concerning Complainant’s mental health. IR
164, 176. With respect to the issue of retroactive adjustments to Complainant’s salary, the AJ
found that the matter had been resolved in 2009 through the grievance process, and that while
the settlement memoranda and various SF-50s showed that Complainant’s position had been
upgraded, there was no evidence to suggest that Complainant was entitled to a promotion or
any other adjustment beyond what he had already received as a result of having reached a
settlement with the HRM in 2009. Thus, on the crucial issue of the motivation of the DHRS
and the HRM, Complainant has not submitted any sworn statements from other witnesses or
documents that contradict the explanation provided by these officials, or which call their
veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact
exists with respect to the motivation of the DHRS and the HRM in connection with the
incidents set forth in the instant complaint.
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CONCLUSION

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

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
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

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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 29, 2016
Date