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

Equal Employment Opportunity Commission

Jun 16, 2016

0120141646 (E.E.O.C. Jun. 16, 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
(Southern Area),
Agency.

Appeal No. 0120141646

Agency No. 4G-335-0103-13

DECISION

The Commission accepts Complainant’s appeal from the February 25, 2014 final Agency
decision (FAD) 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier
Associate at the Agency’s Six Mile Cypress Carrier Annex in Ft. Myers, Florida.
Complainant was in his probationary period at the time of the alleged incidents. Complainant
claims that, beginning in March 2013, he was not called in to work on Routes 256 and 38, and
that as a result, other carriers were forced to work overtime. Complainant alleges that when
he asked his supervisor (S1) why he was not called in for work, she told him that she “chose
not to call [him] in.” Complainant further claims that on one occasion, S1 chose an employee
from another station to run a route over him.

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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On April 5, 2013, Complainant claims that he reported for work and S1 informed him that he
was being terminated or that he could choose to resign. Complainant alleges that S1 explained
to him that he took too long on his routes and that he was late delivering several Express Mail
parcels. Complainant believed that S1’s reasons were not valid as he was conscientious and
improving each day.

On July 13, 2013 (and amended on September 23, 2013), Complainant filed a formal
complaint alleging that the Agency discriminated against him on the basis of race (African-
American) when:

1. Beginning March 18, 2013, and continuing, he was not called in for routes he was
qualified on; and

2. On April 5, 2013, his employment was terminated.2

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and found that management articulated legitimate, nondiscriminatory reasons for
its actions. In particular, as to claim (1), S1 explained that Complainant was not scheduled to
work on March 18, 2013, because all routes that day were worked by senior qualified rural
carrier associates, and Complainant, as a probationary employee, was not entitled to any route
other than his “substitute of record” route. Additionally, S1 stated that a carrier from the Tice
Station was already scheduled to work a route on which Complainant was not qualified. S1
further noted that a carrier went home sick, but a more senior carrier than Complainant was
called in to deliver the route. S1 could not recall ever telling Complainant that “I chose not to
call you in.” In addition, S1 affirmed that Complainant was not scheduled on April 1, 2013,
because he was not qualified for the route that became vacant.

Finally, with respect to claim (2), S1 explained that Complainant was terminated because he
cost the Agency 144 hours during his time with the agency due to Express Mail failures,
scanner set-up failures, mis-delivered mail, delay of outgoing mail, and customer complaints.
S1 noted that Complainant was given extra training consisting of a second "shadow day" with
his regular carrier and received more than the standard 24 hours for a total of 71.75 hours. S1
affirmed that probationary employees like Complainant could not be disciplined and that their
deficiencies could only be documented. Based on Complainant’s performance, S1 decided to
terminate Complainant during his probationary period.

2 Complainant raised an additional claim which he withdrew during the investigation. As a
result, that claim will not be addressed in this decision.
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The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that management did not correctly follow rules in assigning
him work on routes. Complainant further alleges that S1 set him up for failure by giving him
unreasonable standards. Accordingly, Complainant requests that the Commission reverse the
FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Assuming arguendo that Complainant established a prima facie case of discrimination, record
evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, as to claim (1), S1 explained that Complainant was not scheduled to
work on March 18, 2013, because all routes that day were worked by more senior, qualified
carriers. ROI, at 191. S1 further stated that while a carrier went home sick that day,
management made assignment changes using more senior, qualified carriers. Id. at 192. S1
added that Complainant worked 12.47 hours on March 25, 2013. Id. at 191. Complainant
was not scheduled on April 1, 2013, because he was not qualified on the route that was vacant.
Id. S1 noted that as a probationary employee, Complainant was only entitled to his substitute
of record route. Id. Regarding claim (2), S1 asserted that she decided to terminate
Complainant’s employment during his probationary period based on his performance
deficiencies which cost the Agency 144 hours in overage of evaluated hours and assistance.
Id. at 193. S1 maintained that Complainant had numerous Express mail failures, scanner set-
up failures, mis-delivered mail, delays of outgoing mail, and customer complaints. Id. at 193,
221-39. S1 confirmed that Complainant received more than the required amount of training
and that she discussed with him on a regular basis the expectations. Id. at 193, 238-42. As
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Complainant’s performance did not show improvement, S1 decided to terminate Complainant.
Id. at 272-73.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record lacks evidence that the Agency’s actions were based on
discriminatory animus. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that he
was subjected to discrimination as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests may be submitted via regular mail to P.O. Box 77960,
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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 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

June 16, 2016
Date