Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 7, 20150120131522 (E.E.O.C. Apr. 7, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120131522 Hearing No. 532-2012-00099X Agency No. 1C-441-0006-12 DECISION On March 4, 2013, Complainant filed an appeal from the Agency’s January 30, 2013 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician, PS-10, at a Post Office located in Cleveland, Ohio. On March 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and disability when he was sent a Letter of Unsatisfactory 0120131522 2 Completion of Training Required for Promotion-Change to Unassigned Regular in December 2011.1 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. When Complainant did not object, the AJ assigned to the case granted the Agency’s November 23, 2012, motion for summary judgment and issued a decision on January 9, 2013. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. UNDISPUTED FACTS On December 2, 2011, the Manager, Maintenance Operations/EAS-25 (M1) sent Complainant a letter reminding him of his obligation to complete the required qualifying courses, or be returned to his previous MPE Mechanic, Level 9 position. On December 24, 2011, M1 sent Complainant correspondence informing him that because he failed to complete and pass the qualifying, required courses for the Electronics Technician, Level 10, position, he was to return to the occupational group, MPE Mechanic, Level 9 position. M1 also notified Complainant that, effective December 31, 2011, he was being assigned to Tour 3 as an unassigned regular, and that if he failed to bid on a position, he would be assigned to a residual vacancy. Complainant later completed the qualifying courses and was placed into the Electronic Technician, Level 10 position, thereafter. The record shows that two other individuals C1 (African-American) and C2 (African-American) did not pass the required training and were not "grandfathered" into the promotion. There were two other individuals C3 (African-American, disabled veteran) and C4 (Caucasian, disabled veteran), who did not complete the required training, but were "grandfathered" and promoted into the position. Three individuals, C5 (African American, disabled veteran), C6 (African-American, disabled veteran), and C7 (Caucasian), all successfully completed the training, were not "grandfathered" in, and were promoted to the position. The Collective Bargaining Agreement specifies if, "the employee fails to complete satisfactorily the required training.., the employee shall remain as an unassigned regular in his/her current occupational group and level.” The Joint Contract Interpretation Manual states, 1 Complainant also alleged race and disability discrimination when on March 8, 2012, he became aware his grievance in regard to becoming an unassigned regular was settled, and he disagreed with that settlement. The Agency dismissed this claim on the basis that it is a collateral attack on the outcome of another administrative dispute resolution process and, therefore, fails to state a claim. See 29 C.F.R. §1614.107(a)(1). The AJ affirmed this dismissal, noting that Complainant does not dispute it. Complainant does not raise this issue on appeal. Accordingly, we AFFIRM. 0120131522 3 "training required of successful applicants pursuant to Article 38.5.C.3 shall be scheduled and satisfactorily completed within a reasonable period of time which, absent unusual circumstances, shall not exceed one year from the date of the announcement of the successful applicant." ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a summary judgment decision when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. The AJ concluded that Complainant failed to establish a prima facie case of race discrimination because he did not show that he was treated less favorably than a similarly situated employee of a different race, nor did he set forth other evidence sufficient to create an inference of race discrimination. Specifically, the AJ notes that comparative employee (C6) was treated the same as Complainant, in that C6 was given more than one opportunity to pass/take the required training, passed and was promoted to the PS-10 position, just as Complainant was. The AJ also notes that the record shows that employees of a different race were treated the same as Complainant in that they were issued the same letter as Complainant returning them to their previous position when they did not pass/take the required training. The AJ also notes that the record shows that the two employees (C3 and C4), who were "grandfathered" into the position are not similarly situated to Complainant in that they were not given the opportunity to take the required training within the one year period, whereas Complainant was offered the opportunity to take the training within the one year period. We agree with the AJ, but also find that even if Complainant established a prima facie case of discrimination on both alleged bases, the record is devoid of evidence to establish that the Agency's articulated legitimate, nondiscriminatory reason for returning Complainant to his prior position level as an unassigned regular (i.e. , compliance with the collective bargaining agreement) is pretext or otherwise motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 0120131522 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you 0120131522 5 and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date April 7, 2015 Copy with citationCopy as parenthetical citation