Palmer N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 6, 2018

0120180651 (E.E.O.C. Feb. 6, 2018)

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

Palmer N.,1
Complainant,

v.

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

Appeal No. 0120180651

Hearing No. 480-2015-00640X

Agency No. 4F-920-0027-15

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated October 31, 2017, finding no discrimination
regarding his 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint, filed on March 12, 2015, Complainant alleged discrimination based on race
(African-American), sex (male), disability (heart condition, posttraumatic stress disorder, pins in
left thumb), and in reprisal for prior EEO activity when on December 1, 2014, he was terminated
from his position as City Carrier Assistant during his 90-day probationary period. Upon
completion of the investigation of the complaint, Complainant requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). On April 15, 2016, the

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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Agency filed a Motion for a Decision without a Hearing. Complainant did not file a response.
On September 26, 2017, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals
the Agency’s final order.

ANALYSIS AND FINDINGS

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 U.S. 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. Here, we find that the AJ properly issued a decision without a hearing
because no genuine dispute of material fact exists.

In the instant case, the AJ incorporated the statement of facts of the Agency’s Motion for
Summary Judgment by reference. The AJ, assuming arguendo that Complainant had established
a prima facie case of discrimination, determined that the Agency articulated legitimate,
nondiscriminatory reasons for Complainant’s termination. At the relevant time, Complainant
was employed by the Agency as a transitional, non-career City Carrier Assistant, under a
temporary appointment not-to-exceed 360 days, at the Riverside Post Office, Arlington Station,
in Riverside, California. He began employment at the Agency on October 14, 2014.

Complainant’s manager (M1) stated that on December 1, 2014, he decided to terminate
Complainant during his 90-day evaluation period due to his unacceptable work performance.
Specifically, M1 indicated that Complainant’s performance was unsatisfactory in the areas of his
work performance, both quantity and quality, availability/flexibility/dependability, work
relations with coworkers/supervisor, ability to understand/follow instructions,
appearance/conduct/habits, and acceptance of criticism. M1 stated that Complainant was using
excessive time on the street. M1 stated that when management sent other employees to help
Complainant, he would cuss at the helping employees. M1 stated that those employees started
refusing to go help Complainant. M1 stated that when M1 tried to discuss with Complainant his
performance issues, Complainant raised his voice and argued with M1.

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Complainant’s supervisors, concurring M1’s termination decision, stated that: Complainant was
not efficient and not productive; he made excuses for everything; when they try to discuss his
performance issues, he responded that he knew what he was doing and he had done the job
before and he thought he was doing a good job; and anytime carriers went to help him, he would
tell them to shut up and he knew what he was doing.

M1 and Complainant’s supervisors denied having any knowledge of Complainant’s disability or
his prior EEO activity. Complainant acknowledged that he did not notify management of his
disability.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation or that he was required to perform duties beyond any medical
restrictions. We find that Complainant failed to show that he was treated less favorably than a
similarly situated employee under similar circumstances.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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
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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
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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 6, 2018
Date