Marcos S, Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120143063 (E.E.O.C. Feb. 25, 2016)

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

Marcos S,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120143063

Agency No. 4G-720-0082-13

DECISION

Complainant filed an appeal from the Agency’s August 1, 2014 final decision concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

The Agency employed Complainant as an Electronics Technician at the Post Office in
Jonesboro, Arkansas. In April 2013, he received a letter from the Complement Coordinator (CC)
notifying him that because there were no machines remaining at his duty station, his position
would be abolished and he would be reassigned to an Annex as a City Carrier. Investigative
Report (IR) 106, 126, 148. On August 17, 2013, he filed an EEO complaint in which he alleged
that the reassignment was an act of age (51) discrimination and identified the CC and the
Postmaster as the responsible management officials. IR 48. At the conclusion of the ensuing
investigation, the Agency notified Complainant 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). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.
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.

0120143063

2

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel assignments
unless there is evidence of a discriminatory motivation on the part of the officials responsible for
those decisions. 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 the Postmaster and the CC were motivated by
unlawful considerations of his age when they decided to reassign him to the annex on June 1,
2013. 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 motivation by presenting documents or sworn testimony showing that the reasons
articulated by the Postmaster and the CC for reassigning Complainant are pretextual, i.e., not the
real reason but rather a cover for age discrimination. St. Mary’s Honor Society v. Hicks, 509
U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can take the form of
discriminatory statements or past personal treatment attributable to the Postmaster or the CC,
comparative or statistical data showing differences in treatment across age-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 why he believed that he was discriminated against because of his age in connection
with his reassignment, Complainant responded that under the provisions of the collective
bargaining agreement that governed the elimination of positions, his seniority should have
allowed him to remain in his craft, and identified three comparative employees who were
allowed to keep their jobs. IR 48. The Postmaster confirmed that these three individuals had
nominally less seniority and were allowed to remain in the maintenance craft, but averred that
one of the comparatives was a Union Steward and the other two were veterans, and that as a
result of their status, their seniority superseded Complainant’s. IR 127. Although Complainant
contends that he lost his seniority as a result of being reassigned to the Carrier craft, in the letter
notifying him of the reassignment, the CC stated that he would retain his grade and retreat rights
under the collective bargaining agreement. IR 103, 106. Complainant and the other Electronics
Technicians eventually found permanent Technician positions at the Processing and Distribution
Center in Memphis, Tennessee. IR 126.

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
explanation provided by the Postmaster or which call his veracity into question.2 We therefore
agree with the Agency that Complainant failed to establish the existence of an unlawful motive
2According to the Investigator, the CC retired from the Agency and was not available to provide
an affidavit. IR 10.

0120143063

3
on the part of the responding management officials with respect to his reassignment to the
Carrier position at the annex.

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

0120143063

4
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

February 25, 2016
Date