Valentin G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

May 13, 2016

0120143064 (E.E.O.C. May. 13, 2016)

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

Valentin G.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120143064

Hearing No. 550-2014-00285X

Agency No. 1F-946-0037-13

DECISION

On August 20, 2014, Complainant filed an appeal from the Agency’s July 24, 2014, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Operations Support Clerk at the Agency’s work facility in Oakland, California.

On December 26, 2013, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the basis of his race (African-American) when on
September 21, 2013, he was reassigned to a Custodial Laborer position from his previous bid
assignment as a Maintenance Operations Support Clerk.

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).2

The Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The record reveals that based on updated staffing criteria for
Maintenance Operations Support Clerks and the current authorized Maintenance LDC 39 for
the Oakland facility, it was necessary to reduce the number of full-time Maintenance
Operations Support Clerks in the Maintenance Operations Support Clerk section from thirteen
to nine. The Supervisor, Maintenance Operations, explained that the excessing of Maintenance
Operations Support Clerks was determined by tour, utilizing installation seniority. The result
was nine authorized positions and three tours. The decision was made to have three
Maintenance Operations Support Clerks on each tour with Saturday/Sunday, Sunday/Monday
and Saturday/Friday as off days for each tour. According to the Supervisor, there had been
five clerks on each of tours one and two and three clerks on tour three. The Supervisor stated
that two junior clerks from each of tours one and two were excessed and no clerk from tour
three was excessed. The Supervisor further explained that the bids for all three tours needed to
be reconfigured changing the off days of positions not conforming to the off days of the
reconfigured clerk positions. This meant that the clerks had their days off changed to meet the
schedules of the new staffing which required the positions to be posted for bid. Employees
who already had off days in accordance with the new staffing were not affected, including one
clerk from Complainant’s tour three.

The Supervisor stated that since clerks were excessed from tours one and two, bidding for
positions reposted on those tours was limited to in-section bidding. The Supervisor noted that
there was no excessing for tour three and therefore Complainant’s position and that of another
clerk on tour three were open for bid to all clerks and were successfully acquired by two clerks
from other tours. According to the Supervisor, the positions vacated by these two clerks had
to be offered to excessed clerks with retreat rights to their respective tours. The Supervisor
explained that Complainant and another clerk from tour three failed to obtain a bid for one of
the reconfigured positions in the tour three section and therefore became unassigned regulars
who were subsequently placed in residual Custodial Laborer positions based on their seniority
preference.

Complainant claimed that the Manager, Maintenance (African-American) and the Supervisor
(Asian) discriminated against him in terms of his reassignment. The Agency noted that
Complainant asserted that he saw nothing in either the National Agreement or the Local
Agreement that stated the excessing process should be done the way it was conducted.
2 It appears from the record that Complainant subsequently sent a request for a hearing to the
San Francisco District Office. Upon learning that the Agency had already issued a final
decision, the Administrative Judge dismissed his hearing request.

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Complainant argued that a Filipino clerk from tour three had less Agency and installation
seniority than him but she was not excessed. The Supervisor explained, however, that this
clerk was not affected because she was in a position that had one of the requisite pair of off
days.

The Agency determined that Complainant failed to set forth a prima facie case of race
discrimination. The Agency noted that Complainant identified two Filipino employees who he
claimed were treated more favorably than him. The Agency stated that the aforementioned
comparison already had the scheduled days off of Sunday/Monday and thus was not impacted
by the excessing. With regard to the other comparison, the Agency stated that he was treated
the same as Complainant. The Agency noted that like Complainant, he was outbid since there
was someone who bid on his position who had more seniority.

Assuming arguendo that Complainant established a prima facie case of race discrimination, the
Agency responded that four Maintenance Systems Operations Clerk positions were affected by
the excessing as the authorization was reduced from thirteen to nine. The Supervisor stated
that Complainant was the sole African-American employee who was affected and the others
affected were Asian-American. The Manager, Maintenance stated that all actions taken were
based upon the National Agreement and the Local Memorandum of Understanding. The
Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions.

The Agency stated that Complainant attempted to establish pretext by claiming that the
Supervisor was known to give preferential treatment to Filipinos. The Agency determined that
Complainant did not provide evidence to support this claim. The Agency noted that the
Manager, Maintenance, like Complainant, is African-American. The Agency determined that
Complainant failed to establish that its explanation for its actions was untrue or otherwise a
pretext for discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Memorandum of Understanding might not be fair.
Complainant also accuses the Supervisor of giving preferential treatment to Filipinos and of
treating him less favorably than an employee who had less seniority than him. Complainant
states that the Supervisor utilized seniority in the excessing process in one instance and then
used tour excessing in other instances.

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

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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).

We shall assume arguendo that Complainant set forth a prima facie case of race discrimination.
The Agency explained that Complainant was reassigned from his Maintenance Operations
Support Clerk position to a Custodian position pursuant to the excessing of four clerk positions
that was mandated by updated staffing criteria for Maintenance Operations Support Clerks.
The Agency stated that no clerk from Complainant’s tour was excessed but that the bids needed
to be reconfigured to be in accord with the three options for days off. Complainant did not
currently have one of the approved days off options and therefore his position was posted for
bid. Complainant’s position was open for bid to all clerks and was obtained by a clerk from
another tour who had greater seniority. According to the Agency, Complainant was reassigned
to a Custodial Laborer position based on seniority preference after he failed to acquire a bid
for one of the reconfigured positions in the tour three section. We find that the Agency has
articulated legitimate, nondiscriminatory reasons for its actions.

Complainant attempts to establish pretext by alleging that the Supervisor extended preferential
treatment to Filipino clerks. However, Complainant has not offered persuasive argument or
evidence to support this contention. Complainant claimed that two Filipino clerks with less
seniority received more favorable treatment than him. However, one of these clerks already
had days off that were one of the three options and thus there was no need to reconfigure her
bid. The other Filipino clerk referenced by Complainant received the same treatment as
Complainant as he was outbid by a clerk who had more seniority. Complainant argues that he
was unfairly impacted by the Local Memorandum of Understanding. However, Complainant
has not presented evidence that the application of the Local Memorandum of Understanding to
the excessing of the Maintenance Operations Support Clerks was effectuated for the purpose of
discriminating against him based on his race. We find that Complainant has not established by
a preponderance of the evidence that the Agency’s explanation for his reassignment was pretext
intended to hide discriminatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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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,
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

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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

May 13, 2016
Date