Colene M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jun 11, 2019

0120181375 (E.E.O.C. Jun. 11, 2019)

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

Colene M.,1
Complainant,

v.

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

Appeal No. 0120181375

Agency No. 4B020002417

DECISION

On March 9, 2018, 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
February 21, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier,
at the Agency’s Roxbury Post Office facility in Roxbury, Massachusetts.

On August 29, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and color (Black) when: (1)
on February 6, 2017, the Agency placed him on Emergency Placement in a non-pay status; (2)
on February 23, 2017, the Agency issued him a Notice of 14-Day Suspension for failure to
perform his duties in a satisfactory manner; and (3) on February 23, 2017, the Agency’s manager
threatened to fire 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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The Agency dismissed claim (3), pursuant to 29 C.F.R. § 1614.107(a), for failure to state a
claim. In so doing, the Agency found that Complainant was not aggrieved as to his allegation of
a manager threatening to fire him.

The Agency accepted the remaining claims and conducted an investigation, which produced the
following pertinent facts.

On February 6, 2017, Complainant arrived to work over an hour late and did not complete his
assignments relating to route 2509.

The Acting Manager, Program Support (Manager1), attested that, on February 6, 2017, he
overheard Complainant on the telephone with his supervisor (Supervisor1) and noticed
Complainant was slurring his speech. Manager1 met with Complainant and could smell alcohol
on him. Manager1 explained his concern that Complainant was intoxicated, to which
Complainant responded that it was Manager1’s fault because he instructed employees to work
after the Super Bowl. Manager1 explained to Complainant that he was being placed on
emergency placement in a non-pay status. Two supervisors (Supervisor2 and Supervisor3) were
also involved in the decision and verified the smell of alcohol coming from Complainant. They
indicated that management could not allow Complainant to drive the Agency’s vehicle while
under the influence.

Complainant disagreed with management’s actions and alleged that, during a February 3, 2017
meeting, Manager1 stated, “I know you guys are probably going to be out celebrating, even if
you are late or on your last leg, please show up. I need everyone to show up for work on
February 6, 2017. You will be helping management.” Statements signed by Supervisor1 and
multiple Agency employees support Complainant’s statement.

A letter from the Agency to Complainant, dated February 6, 2017 and signed by Supervisor2,
indicates that, in accordance with the union agreement, the Agency placed Complainant in off-
duty status (without pay), effective February 6, 2017 at 4 p.m. The action was taken because
Complainant appeared to be intoxicated by use of alcohol or drugs. Complainant would remain
in this status, pending an investigation, until otherwise advised. The Agency determined that
retaining Complainant on duty may result in Complainant being injurious to himself or others.

A Notice of Suspension of 14 Calendar Days, from the Agency to Complainant, dated February
23, 2017 and signed by Manager1 and a concurring official, indicates that Complainant would be
suspended for 14 calendar days. The charge was failure to perform duties in a satisfactory
manner. The letter notes that, on February 6, 2017, Complainant was 1.5 hours late for work,
failed to complete the sortation of mail for route 2509, failed to pull route 2509 down for
delivery and, instead, took just the DPS mail for route 2509 to the street for delivery.
Complainant was in violation of the Agency’s policies on obedience to orders and behavior and
personal habits, as well as policies requiring him to deliver all mail and timely complete
delivery.

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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 her 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). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed.

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”).

Dismissed Claim

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

Here, we concur with the Agency that in alleging that a manager threatened to fire him,
Complainant has failed to allege sufficient facts, which if proven true and considered together,
would establish that he suffered harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. The complaint simply does not state a viable claim of
discrimination.

Disparate Treatment Claims

Complainant has alleged that the Agency treated him disparately in placing him in an off-duty
status and, subsequently, issuing a notice of 14-day suspension.
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A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must
first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine.
450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claims
ultimately fail as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. As discussed above, the Agency placed Complainant on off-duty status because, on
February 6, 2017, he arrived at work appearing to be under the influence of alcohol. The Agency
issued the suspension because management determined that he failed to perform his duties in a
satisfactory manner on February 6, 2017. He was 1.5 hours late and failed to complete his work
duties. He violated the Agency’s policies on obedience to orders and behavior and personal
habits, as well as those requiring him to deliver all mail and timely complete delivery. Although
Complainant has alleged discrimination, he has not established by a preponderance of the
evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a
pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with
respect to this claim.

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 decision.

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.
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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. 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

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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 11, 2019
Date