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

Equal Employment Opportunity Commission

Mar 29, 2019

2019001748 (E.E.O.C. Mar. 29, 2019)

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

Monroe A.,1
Complainant,

v.

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

Appeal No. 2019001748

Agency No. 4G-320-0039-18

DECISION

On November 23, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 30, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Letter Carrier at the Agency’s Sumerall
Station in Aiken, South Carolina.

On April 6, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), sex (male), color

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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(brown), disability,2 age (over 40), and in reprisal for prior EEO activity when:

1. on December 12, 2017, he was placed on Emergency Placement in an Off-Duty
Without Pay Status; and

2. on January 22, 2018 and other unspecified dates, he was denied the opportunity to
work overtime.

After the investigation of claims 1 and 2, Complainant was provided with a copy of the report of
the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

On October 30, 2018, the Agency issued its final decision, pursuant to 29 C.F.R. § 1614.110(b),
finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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
Construction 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 Texas Department of
Community 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
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination.

2 Complainant identified his disability as a degenerative bone condition. For purposes of this
analysis, we assume, without so finding, that Complainant was a qualified individual with a
disability.
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See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990);
Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8,
1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

In claim 1, Complainant asserted that on December 12, 2017, he was placed on Emergency
Placement in an Off-Duty Without Pay Status.

The Postmaster (American, white female, over 40) was the deciding official to place
Complainant on Emergency Placement for physically assaulting a supervisor on the work room
floor “by purposely pushing empty equipment into [supervisor] to cause physical harm. Gulf
Atlantic District policy specifically states all employees are to adhere to its Zero Tolerance
Policy on violence and inappropriate behavior.” Furthermore, the Postmaster stated that
Complainant’s race, sex, color, disability, age and prior protected activity were not factors in her
decision to place him on Emergency Placement.

Complainant asserted that a named female employee (Employee 1) was treated more favorably
than him regarding being placed on Emergency Placement in an Off-Duty Without Pay Status.
The Postmaster stated, however, “I have not been witness to nor are there any files that show any
favoritism regarding [Employee 1].”

The record contains a copy of the Emergency Placement in Off-Duty Status memorandum dated
December 12, 2017. Therein, the Postmaster placed Complainant on notice that he would be
placed on Emergency Placement effective December 12, 2017. The Postmaster further stated on
December 12, 2017, Complainant “struck [supervisor], walked out of the facility and got into
your POV and drove off before the police arrived. As a result of your actions you will remain
off duty for the reasons cited pending further investigation.”3

In claim 2, Complainant alleged that on January 22, 2018 and other unspecified dates, he was
denied the opportunity to work overtime.

The Postmaster explained that Complainant had been on leave since the December 12, 2017
incident identified in claim 1 and that, therefore, “there would be no opportunity to work in a
pending removal status.” The Postmaster further stated that she was not aware of any
management official denying Complainant the opportunity to work overtime.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

3 POV is an abbreviation for Privately Owned Vehicle.

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CONCLUSION

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.4

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.

4 On appeal, Complainant does not challenge the April 30, 2018 partial dismissal issued by the
agency regarding two other claims (that he was discriminated against on the bases of race, sex,
color, disability, age and in reprisal for prior EEO activity when on December 12, 2017, he was
arrested and jailed for an altercation that occurred while at work, and on December 21, 2017, he
was issued a Notice of Proposed Removal). Therefore, we have not addressed these issues in our
decision.

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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. 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

March 29, 2019
Date