King W., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionFeb 25, 20160120143148 (E.E.O.C. Feb. 25, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 King W., Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120143148 Hearing No. 531-2011-00177X Agency No. 4C-080-0097-10 DECISION Complainant filed an appeal from the Agency’s September 2, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Rural Carrier Associate at the Post Office in Toms River, New Jersey. On August 31, 2010, he filed an EEO complaint in which he alleged that the two Customer Services Supervisors who served as his first-line supervisors (S1A and S1B) along with an Acting 204B Supervisor (AS) discriminated against him on the basis of national origin2 (Hispanic) by attempting to orchestrate his removal on May 20, 2010. The notice of proposed removal stated that on April 7, 2010, Complainant had caused an accident by attempting to illegally pass another vehicle on the right shoulder of the road, and that on April 23, 2010, he failed to secure his vehicle while delivering mail. Investigative Report, pp. 100- 101, 104, 120, 142-43, 169, 171-84, 186-90. At the conclusion of the investigation, the Agency 1This 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. 2“Hispanic” is not a race category; rather, it is a national origin category. 0120143148 2 notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but on July 18, 2014, the AJ dismissed the request on the grounds that Complainant failed to respond to a show-cause order that the AJ had issued on September 18, 2012. The AJ remanded the complaint to the Agency, and 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. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decision to terminate an employee unless there is evidence of a discriminatory motivation on the part of the officials responsible for that decision. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would have to prove, by a preponderance of the evidence, that S1A, S1B, and/or AS were motivated by unlawful considerations of his Hispanic ethnicity when the notice of termination was issued. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can prove the existence of an unlawful motive by presenting documents or sworn testimony showing that the reason articulated by S1A, S1B and AS for issuing Complainant a notice of proposed removal is pretextual, i.e., not the real reason but rather a cover for discrimination against Hispanic employees. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can include discriminatory statements or past personal treatment attributable to S1A, S1B or AS, comparative or statistical data showing differences in treatment across ethnicity-related 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. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). When asked by the investigator why he believed that his national origin was a motivating factor in the decision to remove him, Complainant responded that he had been subjected to violent aggression directed at him by S1A, S1B and AS since March 1, 2010 and that no non-Hispanic carriers who had committed comparably serious infractions were written up. Complainant’s Affidavit dated December 1, 2010 (not a part of the investigative file), pp. 3, 5. All three supervisors denied that this was the case. Unsupported assertions are insufficient evidence of illegal motive. Complainant v. Department of Justice, EEOC Appeal No. 0120131151 (February 25, 2015). And on that crucial issue, Complainant did not provide evidence of any of the indicators of pretext described above. He has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by S1A, S1B or AS, or which call their veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part of any of these officials with respect to the issuance of the notice of proposed removal on May 20, 2010. 0120143148 3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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. 0120143148 4 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 February 25, 2016 Date Copy with citationCopy as parenthetical citation