Romeo K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Feb 1, 2016

0120140886 (E.E.O.C. Feb. 1, 2016)

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

Romeo K.,1
Complainant,

v.

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

Appeal No. 0120140886

Agency No. 4B-020-0043-13

DECISION

Complainant filed an appeal from the Agency’s December 6, 2013 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. For the following reasons, the Commission AFFIRMS the Agency’s Final
Decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Letter
Carrier at the Agency’s Auburn Post Office facility in Auburn, Massachusetts. On June 3,
2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when:

1. On unspecified dates since February 5, 2013, Complainant has been excessively
scrutinized and observed on the road and in the office.

2. On April 13, 2013, Complainant received a 7-Day Suspension for Unacceptable
Conduct / Failure to Perform Duties in a Safe Manner.

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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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 (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).

In its Final Decision, the Agency found that Complainant failed to establish a prima facie case
of reprisal discrimination with respect to his claim that his work has been scrutinized and
micromanaged during the time identified in his complaint. The Agency found that
Complainant failed to present any evidence of a causal relationship between his recent prior
protected activity and the actions described in his complaint regarding his supervision.

Even if Complainant had shown a causal connection, the Agency further found that
Complainant identified no similarly situated employees, without any prior protected activity,
who were scrutinized and observed in the course of the work day less than Complainant. The
Agency considered that Complainant’s supervisor, S1, identified a number of employees who
had no prior EEO activity, who were scrutinized and observed on their routes as often as
Complainant was observed.

With respect to Complainant’s claim that he was retaliated against when he received a 7-Day
Suspension, the Agency found that Complainant received the disciplinary action after he was
observed by S1 carrying mail without a satchel on a portion of his route. The Agency found
that Complainant had been instructed to carry a satchel on his route during stand-up talks on
repeated occasions. The Agency considered S1’s explanation that other carriers had also
received discipline for the same safety violation. Accordingly, the Agency found that
Complainant did not show that he was treated differently than other employees when he
received discipline for the violation described.

The Agency’s Final Decision concluded that Complainant failed to prove that the Agency
subjected him to reprisal discrimination as alleged.

ANALYSIS AND FINDINGS

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”).

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Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

In the instant case, we find the record supports the Agency’s Final Decision. We find that
Complainant did not present evidence that he was observed while he was on the workroom
floor any more than other employees were observed. We find that Complainant did not show
that more likely than not, his work was scrutinized more than the work of his coworkers
during the time specified in Complainant’s complaint. We find, as did the Agency, that S1’s
explanation that she observed Complainant and all employees regularly on the workroom floor
was reasonable. We note that S1 explained that the supervisors observe from where the
supervisory desk is located on the workroom floor and where Complainant and other carriers
are, when they are not out delivering the mail.

Regarding the second claim, we note that Complainant does not claim that he was carrying a
satchel when he was observed on the occasion that led to his receipt of the discipline described
in his complaint. We further find that other employees received discipline for the same
infraction as the Agency Decision and Complainant’s supervisor explained.

We find that the Agency’s legitimate, nondiscriminatory reasons were not shown by
Complainant to be false or a pretext for discrimination.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

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:

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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 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
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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, Director
Office of Federal Operations

February 1, 2016
Date