Lonny H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Apr 2, 2019

2019001254 (E.E.O.C. Apr. 2, 2019)

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

Lonny H.,1
Complainant,

v.

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

Appeal No. 2019001254

Agency No. 1J-603-0025-18

DECISION

On October 20, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 25, 2018, final decision concerning an equal employment opportunity (EEO)
complaint claiming 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., Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant had relinquished his position with the Agency as an
Express Mail Clerk, L-7, at the Agency’s South Suburban Processing and Distribution Center in
Bedford Park, Illinois.

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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On April 16, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), color, sex (male),
disability (diabetes, high blood pressure and cholesterol),2 age (61), and reprisal for prior
protected EEO activity when, on December 6, 2017, Complainant’s request for reinstatement to
his former position following military service was denied.

The record reflects that Complainant left his Agency position as a Mail Clerk in December 2005
to pursue military service in the United States Army. Twelve years later, on December 7, 2017,
following the completion of his military service, Complainant submitted to the Agency a copy
his DD-214, Certificate of Release or Discharge from Active Duty, along with a request that he
be reinstated to his former position as a Mail Clerk at the Agency’s facility in Bedford Park,
Illinois.

In a letter in response to Complainant’s request for reinstatement, the Agency’s Manager of
Human Resources (“HR Manager”) advised Complainant that her authority to approve or deny
Complainant’s request for reinstatement was governed by the Uniformed Services Employment
and Reemployment Rights Act (USERRA). USERRA permits reemployment after no more than
five cumulative years of non-excepted military service. The Manager’s letter further informed
Complainant that additional information regarding his military service was required before the
Agency could make a determination on reinstatement. Specifically, the Agency requested that
Complainant provide a copy of his military orders from December 12, 2005 to October 30, 2017,
to establish whether Complainant’s military service was excepted or non-excepted.

On January 11, 2018, Complainant again requested reinstatement to his former position.
Complainant informed the Agency that when he was called to duty with the United States Army
in 2005, he was told by his Union that his position would be available to him upon his return
from service. The Agency responded to Complainant’s letter with correspondence entitled
“Second Request for Documentation” and dated January 31, 2018. Therein, Complainant was
again informed that the Agency could not act upon his reinstatement request until Complainant
provided specific information about his military service. The Agency’s correspondence further
advised Complainant that if he could not provide the requested information, he should contact
the HR Manager on or before February 9, 2018, with an explanation regarding the status of the
information. According to the record, Complainant did not respond to either of the Agency’s
requests for information.

Subsequently, in a letter to Complainant dated February 15, 2018, the Agency advised
Complainant that his request for reinstatement was denied. The Agency’s letter informed
Complainant that without additional information regarding Complainant’s military service, the
Agency could only rely on information on Complainant’s DD-214 form which indicated that
Complainant served 11 years, 10 months and 19 days of military service from December 12,
2005 to October 30, 2017.

2 We presume for analysis purposes only, and without so finding, that Complainant is an
individual with a disability.
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After an 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), finding no discrimination.

This appeal followed.

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”).

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 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
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). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

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 an 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.

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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).

Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie
case of discrimination as alleged, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its conduct as alleged in this matter. As addressed above, the
Agency made a determination to deny reinstatement following Complainant’s military service,
after unsuccessful Agency attempts to ascertain information from Complainant to determine
whether or not Complainant was entitled to reinstatement pursuant to his USERRA rights.
Complainant failed to respond to the requests for information. Therefore, the Agency used the
information on his DD-214 form which did not indicate he was entitled to reinstatement.

Complainant now bears the burden of proving by a preponderance of the evidence that the
Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly
by showing that the Agency's preferred explanation is unworthy of credence. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. at 256. We note here that Complainant failed to submit
any brief or argument in support of his appeal. Upon review, we find that Complainant failed to
establish pretext. We find no evidence that the Agency's actions were motivated by
discriminatory animus toward Complainant's protected classes.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the final agency decision finding no
discrimination.

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.
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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).

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.
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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

April 2, 2019
Date