0120172138
06-28-2018
Major D,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Major D,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120172138
Hearing No. 560201600049X
Agency No. 4E640008415
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, the May 22, 2017 Final Agency Decision ("FAD") concerning an 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 was employed by the Agency as a City Letter Carrier (Q-1) at the Florissant Post Office in Florissant Missouri.
On August 3, 2015, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of reprisal for prior EEO activity2 when:
On April 27, 2015, his request for a transfer to the Agency's facility in Independence, Missouri was denied due to unacceptable attendance, including an incident of absence without official leave ("AWOL"). 3
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing, but later he withdrew his request. On April 27, 2017, the AJ dismissed the hearing and remanded it to the Agency for a FAD. The Agency subsequently issued the FAD, finding that Complainant failed to prove discrimination as alleged. The instant 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 based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the Agency's legitimate nondiscriminatory reason for the alleged discriminatory act, a denied transfer request, is Complainant's attendance. This is consistent with Agency policy, which dictates that postmasters consider employee transfer requests based on an applicant's safety, attendance, and work records. The postmaster at the employee's office is also required to submit an evaluation of the employee to aid the selection process. Complainant alleges that the Postmaster at the Florissant Missouri Post Office ("P1"), used the evaluation as pretext for reprisal by including information "to discourage approval of his transfer." He also notes that the Postmaster at the Independence Missouri Post Office ("P2") denied his transfer request for "unacceptable attendance," specifically citing an incident where Complainant was marked absent without leave ("AWOL"). While Complainant does not dispute his attendance record, he contends that P1 's evaluation, and the AWOL were "based on prior EEO activity, which never should have been part of the evaluation."
P1's February 6, 2015 reveals that Complainant initially had a "difficult" time transitioning to his position which impacted his attendance.4 However, P1 ultimately concludes that "[o]nce [he] got accustomed to his route," Complainant became "efficient and timely" and that Complainant "is very professional and has become a good asset to the office." The evaluation does not reference Complainant's prior EEO activity, and other than bald assertions, Complainant has not established facts that would give rise to an inference of discrimination.
Complainant argues that the AWOL incident P2 relied on when denying his transfer request, "should not be counted against [him]" because it was the subject of a previously resolved EEO complaint. See Agency Case No. 4J30005114. In accordance with a settlement agreement, the Agency paid Complainant a lump sum of $1500 as compensation for the days he had been marked AWOL. The terms of the agreement did not address whether the Agency would remove the AWOL from his attendance record. To the extent Complainant interpreted the settlement agreement as mandating that the Agency do so, such interpretation should have been reduced to writing as part of the settlement agreement, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. Gen. Servs. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). Moreover, if a settlement agreement is made in good faith and is otherwise valid, it will not be set aside simply because it appears that one of the parties had made a poor bargain. See Ingram v. Gen. Servs. Admin., EEOC Request No. 05880565 (Jun. 14, 1988). Other than Complainant's bare assertions, P2's use of Complainant's prior absences, including the AWOL incident as a determining factor is not sufficient evidence to suggest retaliatory animus. 5
Having carefully reviewed Complainant's submissions on appeal, and the evidence of record, we conclude that Complainant has not established by a preponderance of the evidence that he was subjected to reprisal.
Accordingly, we AFFIRM the Agency's final Agency decision.
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).
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
June 28, 2018
__________________
Date
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.
2 Agency Case Nos. 4J630008710 (May 7, 2010), 4J630009113 (Apr. 12, 2013), 4J630005114 (Feb. 10, 2014), and 4J630007814 (Apr. 14, 2014).
3 We affirm the Agency's August 3, 2015 dismissal of Complainant's second claim, that the Agency denied his transfer request to its facility in Kansas City, Missouri, as untimely, pursuant to 29 C.F.R. �1614.107(a)(2).
4 P1's evaluation includes the statement: "Carrier submitted FMLA and was approved and uses it frequently," representing a potential violation of the Family and Medical Leave Act ("FMLA"), which is outside EEOC jurisdiction. If Complainant wishes to pursue an FMLA claim, he may do so through the Department of Labor. See Stensgard v. United States Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012).
5 On appeal, Complainant also argues that the Agency failed to properly consider his status as a 30% disabled veteran when it denied his transfer request, thereby violating his rights under the Veterans Employment Opportunity Act ("VEOA"). However, the EEOC lacks jurisdiction with respect to veterans' rights or the VEOA. See Lodge v. Dep't of the Treasury, 01A54749 (Dec. 21, 2005); see also Rowe v. Dep't of Commerce, EEOC Appeal No. 0120073252 (Oct. 11, 2007); Devereux v. United States Postal Serv., EEOC Request No. 05960869 (Apr. 24, 1997).
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