[Redacted], Merle J., 1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 5, 2020

Appeal No. 2019003844 (E.E.O.C. Feb. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merle J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019003844 Agency No. 4J-460-0038-17 DECISION On May 16, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 19, 2019 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. BACKGROUND In January 2016, Complainant was hired as a City Carrier at the Agency’s Whiting Post Office in Whiting, Indiana, subject to a 90-day probationary period. On April 19, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when, on February 25, 2017, he was issued a Letter of Termination. In its April 19, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. 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. 2019003844 2 ANAYLSIS 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 case of discrimination by presenting facts which, 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 based on 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. 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, non-discriminatory reasons for deciding to terminate Complainant before the end of his probationary period, as more fully discussed below. The Supervisor, Customer Services (African-American male) stated that during the relevant period he was Complainant’s supervisor. He acknowledged that he issued Complainant a Letter of Termination dated February 21, 2017, for unsatisfactory attendance and performance. The Postmaster (Caucasian female) was the concurring official regarding Complainant’s termination. She explained that on January 7, 2016, Complainant converted to a career employee and “he was progressing in discipline due to his poor attendance prior to converting. In the eleven months he had 11 occasions of either unscheduled call offs, AWOL [Absent Without Official Leave] or tardy. He was well aware of the importance in being regular in attendance and he knew his was less than desirable.” Further, the Postmaster noted that Complainant requested leave from January 16, 2017 to January 22, 2017, which his supervisor denied due to staffing issues. She noted that the supervisor directed Complainant to resubmit his request one week prior to the time he wanted to use leave. Complainant informed the supervisor that he had already booked a flight to Arizona. 2019003844 3 The Postmaster stated that the supervisor explained to Complainant that a named carrier had already requested leave before Complainant and he granted her request because she asked first, and Complainant “threatened [supervisor] that if [Complainant] didn’t get that time off he will just have to get a Doctor’s note for that time period he requested.” The Postmaster noted that on February 6, 2017, Complainant “called off on the day” after Superbowl which was “31 days after converting to a regular.” The next morning, February 7, 2017, Complainant returned to work after his “call off” and the supervisor gave him his 30-day evaluation “expressing his performance was unsatisfactory in several categories, not just limited to attendance…after the evaluation, [Complainant] took his cell phone while driving and began recording himself during the LLV, weaving in and out of parked cars erratically, taping the road and his steering wheel, because his horn was sticking and blowing. He then posts that on social media…Facebook.” Furthermore, the Postmaster stated that Complainant had received a tattoo on his left hand in the shape of a postal collection box. She noted that while delivering mail, Complainant took a picture of his new tattoo and posted it on social media “exposing customer’s mail which included their name and address.” The Postmaster stated that she and the supervisor made a determination to terminate Complainant during his probationary period “due to the totality of his blatant disregard to Postal Vehicle Policies and Postal Procedures during his probational period, not limited to only his attendance.” With respect to Complainant’s allegation that three named employees were treated differently than him, the Postmaster explained that the three employees identified by Complainant “doesn’t come close in comparison to him. The three employees he mentioned in this did NOT have the unsatisfactory performance as he did…[Complainant] violated safety regulations, Postal Policies and Procedures. These three employees did not [emphasis in its original].” After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that management’s explanations for the disputed actions were a pretext for discrimination. As already discussed earlier in this decision, there is no indication that discriminatory factors played any role in how Complainant was supervised and treated during his tenure with the Agency. Rather, the weight of the evidence indicates that concerns about his development as a City Carrier and poor work performance and attendance led to his removal during his probationary period. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2019003844 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. 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. 2019003844 5 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 5, 2020 Date