Manuel K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jun 16, 2016

0120151051 (E.E.O.C. Jun. 16, 2016)

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

Manuel K.,1
Complainant,

v.

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

Appeal No. 0120151051

Hearing No. 530-2014-00119X

Agency No. 4C190003013

DECISION

Complainant filed an appeal from the Agency’s December 15, 2014, final order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a full-time Carrier
Technician at the Agency’s Post Office in Jenkintown, Pennsylvania. On April 2, 2013,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
basis of race (African-American) when:

1. On December 10, 2012, he was issued a Letter of Warning for
Unacceptable/Improper Conduct; and

2. On June 8, 2013, he was issued a Letter of Warning for Failure to Follow
Instructions/Unsatisfactory Effort.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s motion for a decision without a hearing and issued a decision without a hearing on
October 24, 2014. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating
that a “decision on an appeal from an Agency’s final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative
judge’s determination to issue a decision without a hearing, and the decision itself, will both be
reviewed de novo).

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The Supreme Court has held that summary judgment is
appropriate where a court determines that, given the substantive legal and evidentiary standards
that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a
court’s function is not to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the
summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s
favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact
finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of the case. For the reasons discussed
below, we conclude that this matter presents no genuine issue of material fact requiring a
hearing.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
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05950842 (Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).
Claim #1
Complainant received a Letter of Warning on December 10, 2012, for referring to a co-worker
as a “d[**]khead.” To establish a prima facie case of discrimination, Complainant must
identify as comparators one or more similarly situated employees who were treated more
favorably than he. Morrow v. U.S. Postal Serv., EEOC Doc. 05921036 (April 15, 1993);
Davis v. Dep't. of Labor, EEOC Appeal No. 0120101468 (Jun. 24, 2010); see also Haywood
v. U.S. Postal Serv., EEOC Appeal No. 0120092765 (Dec. 2, 2009). To meet this standard,
all relevant aspects of the comparator employees' work situation must be identical or nearly
identical to Complainant’s, i.e., that the employees report to the same supervisor, perform the
same job function, and work during the same periods.
Here, Complainant has identified CW1 as a comparator who was not issued a letter of warning
despite having behaved rudely in the workplace. However, Complainant has adduced no
evidence to support the conclusion that CW1 was similarly situated to Complainant. As the AJ
noted, CW1 was a part-time employee while Complainant was a full time employee. In
addition, Complainant had received warnings from management that further improper behavior
“would not be tolerated.” There is no evidence that CW1 had received similar warnings.
Therefore, Complainant has not shown CW1 to be similarly situated and Complainant cannot
prevail on his claim of disparate treatment discrimination.
Claim #2
According to the Agency, Complaint received a Letter of Warning on June 8, 2013, because
he wore headphones while delivering the mail, in violation of Agency policy (ROI at 167)
despite having received repeated instructions and warnings not to do so. ROI at 120. This is a
legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not deny that
he was wearing headphone as charged in the Letter of Warning. Complainant argues that he
wore headphones on that occasion because he had seen other employees wearing headphones
on the job but he provides no relevant information to support that claim.2 Complainant has
failed to establish that the Agency’s reason for its action is a pretext designed to conceal
discriminatory animus.

2 The only specific information Complainant provides to support his argument on this point
concerns an incident that occurred after the issuance of the Letter of Warning at issue here.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order fully implementing the
AJ’s decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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
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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 16, 2016
Date