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

Equal Employment Opportunity Commission

Dec 19, 2019

2019002455 (E.E.O.C. Dec. 19, 2019)

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

Philip H.,1
Complainant,

v.

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

Appeal No. 2019002455

Hearing No. 480201700800X

Agency No. 4F956004417

DECISION

On March 13, 2019, 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
November 19, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier
Assistant (CCA) at the Agency’s Woodward Park Station facility in Fresno, California.

On April 5, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race/national origin ("Hispanic") and sex (male) when, on January
12, 2017, he was notified that he was separated from his position of City Carrier Assistant (CCA)
during his probationary period. His complaint also alleged that he was not given the same work
schedule provided to one of his Caucasian co-workers.

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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The pertinent record shows that Complainant was hired on October 22, 2016 as a CCA. He was
required to work his assigned tour and serve a 90-day probationary period. Both his immediate
and second-level supervisors are women. Complainant stated that one of his co-workers was
permitted to work every day, but Complainant was not. Complainant contends that the Caucasian
comparator had been given more work than Complainant had been given.

On January 6, 2017, his immediate supervisor issued Complainant a notice of separation for
failure to maintain regular attendance on December 11, 2016, and an absence on December 28,
2016. Complainant acknowledged that he did not work on December 28, 2016, because he had
an injury outside of work. Complainant compares his treatment to that of a white male. One was
separated on January 6, 2017, for his attendance irregularities. The other had not been absent
from work. He transferred to a different location and subsequently resigned.

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 a United States 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 February 15,
2018 motion for a decision without a hearing and issued a decision by summary judgment in
favor of the Agency on January 30, 2019. The AJ found that Comparator 1 was not a useful
comparator because he was treated similarly to Complainant because he was also separated
during his probationary period. The AJ found that Comparator 2 was not an appropriate
comparator because that comparator was never absent from duty at the Woodward Park Station,
and therefore, he did not engage in similar misconduct. Next, the AJ reasoned that the Agency
has stated a legitimate nondiscriminatory reason for Complainant’s termination due to his two
unscheduled absences. The AJ also considered Complainant’s argument that he had the
impression that his supervisor was unconcerned regarding his not working on December 28,
2016. The AJ found that Complainant’s argument, without more, was insufficient to defeat
summary judgment.

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.

This appeal followed. On appeal, Complainant asked that we reverse the Agency’s decision. He
argued that the Agency’s decision “has a disparate impact on a protected race Hispanic, color,
sex (Male), and national origin.” His attorney argued that there was a genuine dispute of material
fact, because the Agency justified its removal decision based on Complainant’s absence on a
date for which Complainant was unaware that he was scheduled to work.

ANALYSIS AND FINDINGS
Initially, we note that Complainant did not argue on appeal that the AJ failed to consider his
claim that the Agency had not provided him with as favorable a work schedule as one of his
Caucasian comparators. We consider that issue waived on appeal.
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The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. (as revised, August 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).

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, material facts in dispute. Such a dispute would indicate that a hearing is
necessary to produce evidence to support a finding that the agency was motivated by
discriminatory animus. Here, Complainant has failed to establish such a dispute.

Section 717 of Title VII states that “all personnel actions affecting [federal] employees or
applicants for employment . . . shall be made free from any discrimination based on . . . race,
national origin or sex.” 42 U.S.C. Section 2000e-16(a).

Complainant acknowledged that his sex was not a factor in his termination. We note that both of
his comparators were men. Regarding his race/national origin claim, one of his comparators was
separated for similar attendance irregularities during his probationary period. The other
comparator was not a proper comparator because he had never been absent from work. Even if
the Agency erroneously relied on the December 11, 2016 absence, there was no evidence that the
error was due to discrimination. Moreover, the Agency based the removal on two unexcused
absences. Construing all of the inferences raised by the undisputed facts in favor of Complainant,
a reasonable fact-finder could not find in Complainant’s favor regarding the issue before us.

Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ
correctly determined that the entry of summary judgment was appropriate and that the evidence
did not establish that Complainant was discriminated against by the Agency as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

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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 tends 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

December 19, 2019
Date