Sylvester D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120171045 (E.E.O.C. Nov. 15, 2018)

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

Sylvester D.,1
Complainant,

v.

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

Appeal No. 0120171045
Hearing No. 440-2015-00038X
Agency No. 4J604002314

DECISION

On January 30, 2017, 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
January 10, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

ISSUE PRESENTED

Whether Complainant established that he was subjected to discrimination and harassment based
on race, sex and retaliation (prior EEO activity) as evidenced by 16 separate incidents which
formed the basis of his claim.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-time Letter
Carrier at the Agency’s Lemont Carrier Annex facility in Lemont, Illinois. On February 15, 2014,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American) and sex (male) as evidenced by 16 separate incidents that
include: short paying him; subjecting him to discipline for failure to follow instructions; telling
him he was a poor performer; charging him Leave without Pay (LWOP); threatening him with
removal; and subjecting him to harassment.

The Agency explained that consistent with existing policies, management took necessary
personnel actions against Complainant; that he was not subjected to harassment; and that his race,
sex and prior or current EEO activity were not determining factors in any of the actions.

Complainant has alleged that on multiple occasions, he was issued discipline for failure to follow
instructions including when he reported to work and noted that the schedule still showed him as
not being scheduled; when he gave 35 minutes of his time to another carrier; and when his
supervisor hung up on him when he called to follow up on an overtime request, and when he
requested assistance. He also alleged that management falsified his personnel folder when
reference was made to discipline that he had not received during a disputed resolution process.

Management explained that Complainant was issued discipline because he failed to follow
instructions when he was absent without excuse; did not scan a barcode on his route as required;
and that no one hung up on him. Rather, he refused to respond to questions, stated he was invoking
his Weingarten rights, and used flash cards. Management also asserted that Complainant’s
allegation of falsified personnel folder information was incorrect.

Complainant alleged that management subjected him to harassment when he was encouraged to
seek Employee Assistance Program (EAP) counseling; when his supervisor berated him in front
of visiting officials; and when he was intimidated and threatened with removal for allegedly
threatening management.

Management explained that Complainant was not berated; rather, his supervisor was investigating
customer issues during the alleged incident. They added that Complainant was provided EAP
information because he indicated to a supervisor that he was stressed out, and he exhibited
threatening behavior which became concerning. They further explained that, consistent with
Agency policy, Complainant received an administrative letter because supervisors felt threatened
when he got angry, yelled, and his hands started shaking.

Complainant also maintained that he was not properly paid for trainings he provided; that he was
told he was a poor performer; that he was short-paid after he participated in a “no lunch” activity;
and that he was charged LWOP after he had requested 32 hours of sick leave (SL).

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Management explained that they were not aware Complainant was to receive higher level pay
because he was not assign to train on the dates in question; and he indicated he had already
informed another member of management about the matter but refused to identify which manager
he told. They added that Complainant had exceeded his daily projected time in violation of the
“no lunch” policy; hence, the need to require that he use annual leave or LWOP. Management also
explained that Complainant failed to submit required documentation within the set timeline for his
SL request, and then submitted insufficient documentation when he did; therefore, he was charged
LWOP.

Furthermore, management indicated that after an annual route inspection, Complainant was told
he was a poor performer because he put forth very little effort throughout the entire day, expanded
his street time, and had to be instructed to perform important aspects of his duties.

Complainant also maintained that he was told he was not in uniform when, on a cold day, he wore
an all-blue hooded jacket which he had worn in the past to keep warm in the office. Management
explained that Complainant was wearing a sweatshirt with an emblem that was not part of the
approved uniform, and was therefore, inappropriate to represent the Agency. They added that
employees could wear such clothing in the winter to keep warm but that this situation took place
after the winter was over, and that appropriate procedures were followed to correct the situation.

Complainant also alleged that management followed him during his lunch break; asked a co-
worker he had identified in his prior EEO complaint to write a statement contradictory to
Complainant’s allegations; and purposefully gave him an obliterated bar code. Management
explained that the co-worker had mistakenly been scheduled to work during a period when he was
on vacation, and had not been notified that he had to work. The co-worker refused to write the
statement. Management also indicated that Complainant had been observed during his lunch break
because he had been averaging 30 minutes over the allowed break time over a three-month period.
Management attributed the obliterated bar code to an error at the Processing and Distribution
Center, which Complainant had been instructed to override by keying the tracking numbers into
the scanner and delivering the parcel.

Complainant maintained that management’s actions were based on his race and sex because
Caucasian male employees received more favorable treatment; and female employees were not
charged LWOP. He also asserted that management’s actions were in retaliation for his prior EEO
activity. The Agency maintained, however, that neither Complainant’s race, sex nor prior EEO
activity were determining factors in management’s actions.

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). Complainant timely requested a hearing.
After a Motion for Summary Judgment by the Agency, the AJ assigned to the case determined that
the complaint did not warrant a hearing and, over Complainant’s objections, issued a decision
without a hearing on January 10, 2017.
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The AJ found that, based on the available evidence, including the investigative file, and
submissions by the parties, there were no genuine issues of material fact or issues of credibility,
making summary judgment appropriate.

The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for its actions
and Complainant failed to provide evidence that those reasons were a pretext for discrimination.
The AJ stated that none of the allegations raised by Complainant indicated that discriminatory
animus played a role.

The Agency subsequently issued a final order implementing the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.

CONTENTIONS ON APPEAL

In his appeal statement, Complainant requested a reversal of the summary judgment decision and
the subsequent final action taken by the Agency, contending that the AJ did not view the evidence
in the record in a light most favorable to him. Complainant also contended the decision made
credibility determinations which is improper at the summary judgment stage.

The Agency asserts that the AJ correctly found that Complainant was not subjected to
discrimination, retaliation or discriminatory or retaliatory harassment as alleged. They assert that
in support of his appeal, Complainant relies on his own self-serving assertions and blatant
misrepresentations of the record evidence to claim that genuine issues of material fact exists; and
that Complainant’s contentions are without merit.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

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. (Aug. 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).
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This essentially means that we should look at this case with fresh eyes. In other words, we are
free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and
legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and
on the legal issue of whether any federal employment discrimination statute was violated. See id.
at Chapter 9, § VI.A. (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”).

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal
No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of
the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).

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Upon review of the record, we find that there is no genuine issue of material fact presented here.
The record has been adequately developed, Complainant was given ample notice of the AJ’s intent
to issue a decision without a hearing, he was given a comprehensive statement of the allegedly
undisputed material facts, he was given the opportunity to respond to such a statement, and he was
given the chance to engage in discovery before responding, if necessary. We find that, even
assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as
explained below. Therefore, we find that the AJ’s issuance of a decision without a hearing was
appropriate.2

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the 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. Co. 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, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, 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 based on
race, sex and retaliation, we find that the Agency articulated legitimate, nondiscriminatory reasons
for its actions as set forth above. We also find that he did not provide evidence of pretext.
Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile
work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000). Furthermore, we find that the claims, even if accurately
described by Complainant, were not severe or pervasive enough to establish a hostile work
environment.

2 We note that, in addressing the AJ’s issuance of a decision without a hearing, Complainant’s
opposition must consist of more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth specific facts showing that there
is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order finding that Complainant did
not establish discrimination as alleged.

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 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.
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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

November 15, 2018
Date