Jeramy R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120171998 (E.E.O.C. Nov. 16, 2018)

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

Jeramy R.,1
Complainant,

v.

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

Appeal No. 0120171998

Agency No. 4G730002916

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the April 18, 2017, final
agency decision (FAD) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a carrier technician at
the Agency’s Village Bridge Post Office facility in Oklahoma City, Oklahoma.

On July 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and reprisal for prior protected EEO activity
when, in October 2015, the Agency’s management denied Complainant request for a route
change from Route 32 to Route 28, but on March 19, 2016, he learned that a co-worker
(Caucasian) had requested a route change and his request was approved.

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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The Agency accepted the complaint and conducted an investigation which revealed the following
pertinent facts.

Complainant’s supervisor indicated that, although Complainant requested the route change
through her, she was not the responsible management official who denied Complainant’s request.
The customer service manager, her supervisor, denied the request. With respect to providing an
explanation for the denial of the Complainant’s request, she cited a portion of the union
agreement indicating such action is within management rights.

An email from the customer service manager, dated December 30, 2016, indicates that
Complainant asked to exchange Route 30 for Route 28 and another employee was already
assigned to Route 28, so they would be unable to grant the request. By contrast, the co-worker
requested to switch Route 23 for Route 39 and his request was granted because it was a vacant
assignment and affected nobody. Had Complainant requested Route 39, he indicated it would
have been granted.

The investigation also contained the EEO Counselor’s Report on this matter. The initial
interview report by the EEO Counselor indicates that, on May 20, 2016, the customer service
manager stated that switching Complainant’s route as requested would have impacted three
employees’ off-days, whereas switching the co-worker’s route only impacted one letter carrier.

The EEO counselor’s report also indicates that Complainant stated that his supervisor was the
responsible management official who denied his request to switch routes. His supervisor
informed him that the request was denied because the days off did not match. Complainant did
not know if the customer service manager was involved, but Complainant did not speak to the
customer service manager about the request. Complainant indicated that the days off on the co-
worker’s routes (39 and 23) also did not match.

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues, among other things, that he has established a prima facie case,
identifying his co-worker (Caucasian) as the comparator, alleging that he was treated differently
with respect to the requests to switch routes.
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Complainant also alleges the Agency erroneously applied the facts to find the route had a floater
at the time Complainant requested to switch routes and that the Agency’s explanation for its
actions was a pretext for discrimination, noting the Agency has provided shifting explanations.

The Agency has not submitted a brief or argument in response.

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”).

Complainant has alleged he was treated disparately in the request of a route transfer. A claim of
disparate treatment is examined under the three-part analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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 Constr. 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 Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S.
248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the evidence that the agency
acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993).

Even if we assume that Complainant established a prima facie case of discrimination based on
race, his claim ultimately fails, as we find that the Agency articulated legitimate, non-
discriminatory reasons for its actions. The Agency’s management has explained that, although
both the Complainant and his co-worker requested route changes, Complainant’s request
involved a situation where the off days did not match, and the co-worker’s requested change did
not impact as many employees. Complainant has acknowledged that the impacted employee in
the co-worker’s case was an employee who had been out sick for approximately six (6) months
who agreed to switching off days. Complainant has not established that his requested change
would have had a similarly negligible impact on employee scheduling. Therefore, we find that
Complainant has not shown the Agency’s proffered reasons to be pretext for discrimination.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed in this decision, we AFFIRM the Agency’s finding that Complainant has
failed to establish by a preponderance of the evidence that he was subject to discrimination on
the basis of race or in reprisal for prior EEO activity.

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).
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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

November 16, 2018
Date