Mason H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 28, 2019

0120170752 (E.E.O.C. Feb. 28, 2019)

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

Mason H.,1
Complainant,

v.

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

Appeal No. 0120170752

Agency No. 1F957004816

DECISION

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 November 25, 2016, 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. 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 Mail Handler at the
Agency’s Processing and Distribution Center (P&DC) facility in Sacramento, California.
Complainant’s employment for the Agency as a full time Mail Handler started on December 26,
2015, and required him to serve a probationary period.

On January 19, 2016, Supervisor One instructed Complainant to place loose magazines from a
hamper into a tub for processing. Supervisor One reported that Complainant argued with his
instructions. Supervisor Two reported after the incident, Complainant purposely moved in a
slow manner to his job assignment. On January 24, 2016, Supervisor Two reported that
Complainant was missing from his job assignment despite receiving previous warnings about

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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extended breaks, lunches, or leaving his assigned post without prior authorization from a
supervisor.

On January 21, 2016, the Agency posted a notice and informed Agency employees that effective
immediately cell phones and blue tooth devices were not allowed on the workroom floor as these
devices interfered with the facility’s scanners and productivity of employees. On that same day,
Complainant signed an acknowledgement sheet of the new policy.

On January 29, 2016, Manager Distribution Operations (MDO) observed Complainant using his
cell phone on the workroom floor. MDO informed him he was not allowed to have a cell phone
on the workroom floor in accordance with the Agency’s policy. Complainant told MDO he was
checking the time and was not aware he was not allowed to have a cell phone in his pocket.
MDO informed Complainant that his supervisor would be informed of his violation of the no cell
phone policy. On February 2, 2016, Complainant was issued a Letter of Warning for his failure
to follow instructions because he had a cell phone on the workroom floor in violation of the
Agency’s policy.

On February 5, 2016, Supervisor Distribution Operations (SDO) discussed Complainant’s
performance with him and the allegations of poor performance and his failure to follow
instructions during a 30-day evaluation. Complainant was terminated from his employment with
the Agency by SDO on that day.

On February 22, 2016, Complainant was issued a Notice of Separation by the Agency
concerning his removal from employment. The Notice cited to Complainant’s misconduct
incidents and performance below the expectations of the position. The Notice stated the decision
to separate his employment was made after SDO discussed Complainant’s performance with
management officials and Complainant. The Notice cited to Complainant’s failure to improve his
performance after management discussed the requirements of the position with Complainant.

On May 12, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of race (South Asian, Indian) when on February 5, 2016, he was
terminated from his position as a Mail Handler during his probationary period.

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

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.
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§ 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”).

In the instant case, the Agency found that Complainant failed to establish that he was subjected
to discrimination. Generally, claims of disparate treatment are examined under the analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, she 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. McDonnell Douglas, 411 U.S. at
802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). In a disparate treatment case, a prima
facie case of discrimination based on sex many be done by Complainant's showing that she is in
a protected class, and was treated less favorably than other, similarly situated employees outside
her protected class. Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir.
1875). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason
for its actions. Texas Department of Community 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 Products, Inc., 530 U.S. 133
(2000).

We find that assuming, arguendo, Complainant could establish a prima facie case of
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
action. Specifically, the Notice of Separation stated Complainant failed to meet performance
standards during his probationary period. Complainant was previously informed by management
officials of the performance requirements of his position. The Notice informed Complainant he
had failed to show improvement, had not met the performance expectations, and cited incidents
of poor performance or misconduct. Specifically, the Notice cited to an incident when
Complainant argued with Supervisor One when given a task to complete, denied that the task
was his responsibility to complete, and, thereafter, moved in a slow manner to complete the
assigned task. Prior to January 24, 2016, Complainant was given a clear warning against
extended breaks, long lunches, and leaving an assigned work area without prior authorization
from a supervisor. However, on January 24, 2016, as cited in the Notice, Supervisor Two
reported Complainant was missing from his assigned work area. Moreover, the Agency
considered his past record including the Letter of Warning dated February 2, 2016, for failure to
follow instructions because he had a cell phone on the workroom floor. Having found
Complainant was not reliable or dependable to meet the performance standards of the position of
Mail Handler, the Agency separated him from employment in order to promote the efficiency of
the postal operations. Finally, Complainant has failed to provide any evidence to show that
similarly situated persons were treated differently or that the Agency’s action was a pretext for
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discrimination. We agree with the Agency’s decision that the evidence does not establish that
Complainant was similarly situated with any other Mail Handler.

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). 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,
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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. 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

February 28, 2019
Date