Kerry B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 10, 20192019001747 (E.E.O.C. Sep. 10, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kerry B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2019001747 Agency No. 1C-151-0016-18 DECISION On November 13, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 2, 2018 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor, Distribution Operations at the Agency’s Pittsburgh, Pennsylvania Processing and Distribution Center. On June 4, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on the bases of race (Caucasian), disability, and in reprisal for prior EEO activity when: 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. 2019001747 2 1. on February 24, 2018, he was issued a Letter of Warning;2 and 2. on March 22, 2018 and May 18, 2018, he was denied reassignment. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its November 2, 2018 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS 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 which, 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). 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 based on a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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). 2 The document which memorializes the Letter of Warning reflects that the Agency inadvertently identified the date of the Letter of Warning as February 24, 2017, instead of February 24, 2018. 2019001747 3 Complainant identified his disability Post-Traumatic Stress Disorder. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. Regarding claim 1, Complainant asserted that on February 24, 2018, he was issued a Letter of Warning. The Postmaster (Caucasian) stated that during the relevant period he was Complainant’s Attendance Control Manager. The Postmaster acknowledged issuing Complainant the Letter of Warning on February 24, 2018 for Unsatisfactory Attendance. The record contains a copy of the February 24, 2018 Letter of Warning that indicates Complainant had failed to meet the attendance requirements of his Supervisor, Distribution Operations position. The Postmaster stated that Complainant was absent from his official duties on the following dates: September 28, 2017 (8 hours Emergency Annual Leave), October 12, 2017 (8 hours sick leave), January 29, 2016 (8 hours Leave Without Pay), and February 7-8, 2018 (16 hours sick leave). The Postmaster determined that Complainant violated the following sections of the Employee and Labor Relations Manual: 511.43 “Employee Responsibilities” and 665.41 “Requirement for Attendance.” Furthermore, the Postmaster stated, “it is my hope that this Letter of Warning will impress upon you the seriousness of your actions and that it is critical that they not continue.” Complainant asserted that the Postmaster informed him that he held Complainant to a higher standard because he was more knowledgeable than other supervisors. However, the Postmaster stated that Complainant made a remark that his leave “was not as poor as some of the Craft employees. I told the complainant, that I held ALL EAS personnel to a high standard of attendance as EAS are to lead by example.” Regarding claim 2, Complainant alleged that on March 22, 2018 and May 18, 2018, he was denied reassignment. The Manager, Maintenance Operations (Caucasian) stated that he was the selecting official for the EAS-17 Supervisor Maintenance Operations, position number 95149632. He stated that he was looking for someone with knowledge of the maintenance procedures and policies. The Manager stated that after receiving a list of the qualified candidates, including Complainant, he reviewed the candidates’ applications and interviewed them. The Manager stated that following the interviews, he chose the selectee because he was deemed the best qualified. The Manager stated that the selectee was an Acting Supervisor, Maintenance Operations at the time of the selection and had worked in this position for the last seven months. He also noted that the selectee had “been involved in the Maintenance Field for twenty-four years. 2019001747 4 During the interview, he was able to explain in detail many aspects of the job and was able to describe how he uses the USPS websites and applications to perform his job. He described how he knows the Maintenance Language in great detail and the positive effects it is having.” The Manager stated that he did not select Complainant for the subject position due to Complainant’s relative lack of knowledge. Specifically, the Manager stated that Complainant was “unprepared and some of his answers to the questions did not pertain to the question asked.” Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2019001747 5 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 September 10, 2019 Date Copy with citationCopy as parenthetical citation