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

Equal Employment Opportunity Commission

Apr 4, 2018

0120162627 (E.E.O.C. Apr. 4, 2018)

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
(Headquarters),
Agency.

Appeal No. 0120162627

Hearing No. 570-2014-0063X

Agency No. 6H-000-0007-13

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated July 14, 2016, finding no discrimination with
regard to 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For
the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forensic Computer
Analyst, Senior, ISLE-14, for the Agency’s U.S. Postal Inspection Service at its Dulles Forensic
Laboratory/Digital Evidence Unit. On October 31, 2013, Complainant filed his complaint
alleging discrimination based on sex (male), age (over 40), and in reprisal for prior EEO activity
when:

(1) On June 30, 2013, he discovered that his case statistics were under-reported;

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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(2) On July 10, 2013, during his mid-year review, he was told that he was not meeting his
goals and objectives;

(3) On August 5, 2013, he was placed on a Success Improvement Plan (SIP); and

(4) On November 15, 2013, he received an “unacceptable” rating for FY 2013.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On June 24, 2016,
the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s
final order implemented the AJ’s decision.

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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that as a Forensic Computer Analyst,
Complainant conducted forensic analyses of digital and computer related evidence in support of
criminal investigations. The AJ noted that as a Senior Forensic Computer Analyst, ISLE-14
grade level, Complainant was required to complete at least 48 submissions and/or 120 exhibits
and complete 75% of his submissions within 60 days for FY 2013. All analysts, including
Complainant, had their work product and turnaround days reported in the Digital Evidence
Management System (DEMS).

Regarding claim (1), Complainant claimed that although he reviewed 115 exhibits by the end of
9 months of FY 2013, his second level supervisor (S2), an Assistant Laboratory Director, under-
reported his case statistics. S2 denied she under-reported Complainant’s statistics. S2 indicated
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that at the relevant time, the DEMS showed that Complainant had only completed 14
submissions (below the required 36 submissions), 40 exhibits (lower than the required 90
exhibits), and average turnaround of 109 days (only 36% of his submissions was within 60 days,
instead of the required 75%). We find that Complainant failed to show any evidence to support
his 115 exhibit statistics. S2 stated that all analysts’ work was recorded in the DEM and the case
statistics for all analysts, including Complainant, were solely based on the DEMS.

Regarding claim (2), Complainant’s immediate supervisor (S1), a Laboratory Unit Manager,
indicated that on July 10, 2013, during Complainant’s mid-year review, S1 informed him that he
was not meeting his performance goals and objectives. Specifically, S1 stated that for the period
from October 1, 2012, to March 31, 2013, the DEMS showed Complainant completed only 8
submissions with 25 exhibits listed.2

Regarding claim (3), S1 stated that on August 5, 2013, he placed Complainant on a SIP because
he was not meeting his performance goals and objectives for his position. Specifically, S1
indicated that for the period from October 1, 2012, to July 17, 2013, the DEMS showed that
Complainant completed only 17 submissions with 60 exhibits.

Regarding claim (4), S1 indicated that on November 15, 2013, S1 rated Complainant
“unacceptable” for FY 2013 because he failed to meet the required performance goals.
Specifically, S1 stated that to meet the minimum requirements for his position as an ISLE 14, a
Senior Level Examiner, Complainant must complete 48 submissions and/or 120 exhibits by the
end of FY 2013. S1 indicated that Complainant, however, only completed 24 submissions with
103 exhibits and an average turnaround time of 112 days which were well below the required
statistics for a Senior Level Analyst.

Complainant claimed that his supervisors’ method of calculating exhibits was unfair and
unrealistic. However, the AJ found and we agree that Complainant failed to present any
evidence that the supervisors did not apply the same method to all analysts in the facility.
Complainant also claimed that other employees were assigned less complex and less time-
consuming cases. However, he provided no evidence to support that argument. There is no
evidence that at the relevant time, the supervisors manipulated the number and types of cases
being assigned to employees, including Complainant, or assigned unachievable goals to the
same.

S1 noted that all analysts that had fallen short of the minimum required performance goals could
still meet the goals if they participated in other projects, such as technical review of other
analysts’ submissions or work on special projects, during the rating period. S1 indicated that
during FY 2013, Complainant participated in none of these projects whereas some analysts did.
Complainant does not dispute this. We note that Complainant identified 12 employees who also
did not meet the required goals but were not issued a low performance rating for FY 2013 as he

2 S1 stated that Complainant actually worked on 22 of the exhibits (2 could not be examined, and
1 for an unstated reason was not examined).
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was. Upon review, we find that those employees identified by Complainant were not similarly
situated employees under similar circumstances since they were not an ISLE 14 grade level, not
supervised by S1, not in the same position, and/or they participated in additional projects to meet
the required goals.

After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency’s
legitimate, nondiscriminatory reason for its actions. Regarding his claim of harassment, we find
that Complainant failed to establish the severity of the conduct in question or that it was related
to any protected basis of discrimination. Furthermore, we find that Complainant failed to show
that there were any similarly situated employees not in his protected groups who were treated
differently under similar circumstances. On appeal, Complainant raises numerous arguments
which were addressed previously or which are not related to the subject matter at issue. He also
indicates that he was removed from his employment at the Agency on June 17, 2015. This
matter is not at issue. Based on the foregoing, we find that Complainant has 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
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
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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.

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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

April 4, 2018
Date