0120160182
02-02-2018
Myles W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Myles W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120160182
Hearing No. 443-2015-00068X
Agency No. 4J-530-0108-14
DECISION
On October 2, 2015, 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 2, 2015, final decision 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., 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant did not demonstrate that he was subjected to discrimination as alleged.
ISSUE PRESENTED
The issue presented is whether the FAD erred in finding that Complainant did not demonstrate that the articulated reasons were pretext for discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accountable/Distribution Clerk at the Agency's Appleton Postal facility in Appleton, Wisconsin. Initially, Complainant worked as a Full-Time Clerk at the Fond du Lac postal facility. Following a Function 4 study, it was determined that there were too many clerks at the Fond du Lac Post Office where Complainant worked. Thereafter, the Union and the Agency decided that the most junior clerk would be excessed. Complainant was the most junior clerk, so he received excessing papers to move to the Appleton facility. Complainant argued, however, that the excessing process was not properly conducted. He also argued that he was being moved because of a June 2010 incident, where an employee (E1), falsely accused him of poisoning her. Complainant indicated that he learned that E1 was returning to his work station after he received the excessing papers. Complainant maintained that the news of her return caused his PTSD to flair-up and he was hospitalized. He believed that E1 should have been the one to be excessed.
On October 9, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (Post Traumatic Stress Disorder (PTSD), Depressive Disorder, Anxiety Disorder, and Insomnia), and age (48) when on June 14, 2014, he was reassigned to the Appleton Post Office.
At the conclusion of the 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. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued the FAD pursuant to 29 C.F.R. � 1614.110(b). The FAD found that Complainant did not demonstrate that he was subjected to discrimination on any bases as management articulated legitimate, nondiscriminatory reasons for its actions. The Agency also found that Complainant did not demonstrate that the articulated reasons were pretext for discrimination. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts, among other things, that the Agency allowed E1, to devastate, and ruin his image, life, and reputation. Complainant maintains that the Agency allowed him to be accused, intimidated, pressured, and victimized. He contends that E1 was accommodated and allowed to return to work after her false accusations. Complainant maintains that he was told that E1 would not be returning to that office, and that prior to his being accused of the work place incident he had never struggled with mental health issues. He contends that he was pressured on numerous occasions by management to take a lie detector test for something that he never did. He asserts that E1 was allowed to dictate what she wanted done and the Agency always went along with that.
In response, the Agency asserts, among other things, that the Agency articulated legitimate nondiscriminatory reasons for its actions, namely that the Complainant was excessed because he was the most junior employee. The Agency indicated that Complainant did not show that its reason was pretext for discrimination. The Agency notes that E1 had more seniority than Complainant so therefore she would not have been excessed.
ANALYSIS AND FINDINGS
Standard of Review
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").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was the most junior employee so he was excessed. We find that other than his conclusory statements, Complainant did not provide any evidence which showed that he was excessed because of discriminatory reasons. Further, while Complainant raises a number of matters on appeal about E1, we find that these assertions do not establish pretext with respect to why he was excessed.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to 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.
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
2/2/18__________________
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.
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