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

Equal Employment Opportunity Commission

Apr 9, 2019

0120180184 (E.E.O.C. Apr. 9, 2019)

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

Marcellus M.,1
Complainant,

v.

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

Appeal No. 0120180184

Agency No. 4G752009217

DECISION

On October 3, 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
September 19, 2017, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician,
02/C, at the Medrano Post Office in Dallas, Texas.

On March 21, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability when on January 15, 2017, he was placed on emergency
placement. 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

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.
0120180184

2
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

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”).

On appeal, Complainant contends that he did not allege discrimination on the basis of his disability.
Rather, Complainant asserts that his claim concerns the violation of his privacy rights when
management recovered content from his social media pages without permission. Complainant
asserts management is attempting to terminate him.

Initially, we note that even if the alleged privacy violation was part of the complaint, the
Commission does not have jurisdiction to address Complainant’s privacy claim. Matters such as
an individual’s right to privacy are outside the purview of the EEO process. See 29 C.F.R.
§ 1614.103(a). As such, and because Complainant’s appeal is not fully clear, we will address the
issue he did raise in his complaint.

In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies
that its decisions were motivated by Complainant's disability and there is no direct evidence of
discrimination, the Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S 792 (1973). See Heyman v. Queens Village Comm.
for Mental Health for Jamaica Cmty Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999). Under this analysis, in order to establish a prima
facie case, Complainant must demonstrate that: (1) he is an “individual with a disability”; (2) he
is “qualified” for the position held or desired; (3) he was subjected to an adverse employment
action; and (4) the circumstances surrounding the adverse action give rise to an inference of
discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).

The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were a
pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his
obligation to show by a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Board
of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

0120180184

3
Assuming arguendo that Complainant established a prima facie case of discrimination on the basis
of disability, we note that the Agency has articulated legitimate, nondiscriminatory reasons for its
actions. As reflected in the final decision, the Agency averred that its Office of Inspector General
(OIG) received an anonymous tip from an individual who alleged that Complainant was engaging
in filming activities while on duty and in uniform. The Agency explained that management
officials immediately initiated an investigation into Complainant’s conduct and placed him on
emergency placement during the pendency of the investigation because his conduct violated safety
rules and potentially endangered the security of federal mail and/or funds.

After careful review of the evidence of record, we find no persuasive evidence to suggest that
Complainant's disability was a factor in the Agency's action. To the contrary, the preponderance
of the evidence suggests that the Agency had reasonable grounds, in light of the OIG referral, to
place Complainant on emergency placement pending the outcome of an investigation. While we
recognize that managers at Complainant’s previous work facilities did not discipline Complainant
for his filming activities, we note that he transferred to a new facility (Medrano Post Office) and
was under different management at the time of the Agency’s action. Complainant has not shown
by a preponderance of the evidence that management at the Medrano Post Office took disciplinary
action against him because of his disability, rather than in response to an OIG referral. He also has
not shown that he was treated less favorably than similarly situated individuals. For these reasons,
we conclude that Complainant failed to prove his allegations of discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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).
0120180184

4
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 court has the sole
discretion to grant or deny these types of requests.

0120180184

5
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

April 9, 2019
Date