Marlon H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 13, 2019

2019000578 (E.E.O.C. Mar. 13, 2019)

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

Marlon H.,1
Complainant,

v.

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

Appeal No. 2019000578

Agency No. 4G-752-0094-18

DECISION

On September 14, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 23, 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.

BACKGROUND

During the period at issue, Complainant worked as a Laborer Custodian at the Agency’s Palestine,
Texas Post Office.

On February 23, 2018, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on sex (male) when:

on November 1, 2017, he was denied the Level 4 Full-Time Custodian position at the
Agency’s Tyler-Azalea Station.

After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.

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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In accordance with Complainant’s request, the Agency issued a final decision on August 23, 2018,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANAYLSIS AND FINDINGS

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, she
must first establish a prima facie case of discrimination by presenting facts which, 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). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted based on a prohibited reason. See St. Mary’s Honor Center 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. 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).

In September 2016, Complainant started working for the Agency as a Postal Support Employee
(PSE) and was later converted to a career employee in a Laborer Custodian position. Complainant
asserted that on April 28, 2017, a Laborer Custodian employee retired but management did not
post the subject position in accordance with the Joint Contract Interpretation Manual (JCIM)
Article 38, as required.

Complainant stated that on June 25, 2017, he filed a grievance for not being provided an
opportunity to apply and be placed on a Preferred Assignment Register (PAR). Complainant stated
although the subject position was never posted, a named female employee (Employee 1) was
awarded the job. Complainant claimed he was told he could not be considered for the subject
position because he had been “transferred wrong” when he was reassigned to the Tyler-Azalea
Station in March 2017.

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Further, Complainant acknowledged that he was indeed eventually converted to a Full-Time
Regular (FTR) position at the Tyler-Azalea Station. Complainant, however, asserted he should
have been given the subject position in April 2017 when the former Laborer Custodian retired. He
claimed that it was not until ten months later when he was given the position, and that he was
therefore “shorted for 10 months (of annual leave, sick leave, hours) due to management decision
to violate the contract.”

We first acknowledge, as the Agency noted in its final decision, that the actions relating to the
subject claim reflect a long and complicated series of events, “including the fact that the union
filed grievances and management entered into settlement agreements, [and] it is apparent that there
were mistakes in the process that was used to fill the Laborer Custodial positions.” Nevertheless,
we determine that Agency management articulated legitimate, nondiscriminatory reasons for its
actions. Given the exhaustive and lengthy recitation of events in the Agency’s final decision, we
find it unnecessary to specifically address them in our decision. We make the following
determinations, however, in our finding of no discrimination.

The missteps in the process for selection of Agency positions were reflected in attempts by Agency
management and union officials regarding interpretation of various provisions of a collective
bargaining agreement, and settlement agreements between the two parties. None of these
attempts, unsuccessful or otherwise, were prompted by discriminatory animus in any of the raised
bases. Moreover, as the Agency noted, the thrust of Complainant’s assertions relate to objections
to the resolution of union grievances that were filed.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination. As noted
above, there is a long, and admittedly tortuous process attendant to the subject claim. However,
we discern nothing in that process that substantiates a finding of discriminatory animus.

Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of
record does not establish that discrimination occurred.

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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.

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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

March 13, 2019
Date