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

Equal Employment Opportunity Commission

May 18, 2017

0120152955 (E.E.O.C. May. 18, 2017)

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

Salvatore B.,
Complainant,

v.

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

Appeal No. 0120152955

Agency No. 1F-901-0027-15

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated August 4, 2015,
finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

In his complaint, filed on February 17, 2015, Complainant alleged discrimination based on race
(Black) and sex (male) when on November 2, 2014, he was removed from his position as a
Building Equipment Mechanic during his probationary period. After completion of the
investigation of the complaint, Complainant did not request a hearing. The Agency then issued
its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut.

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.

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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§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 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, assuming arguendo that Complainant had established a prima facie case of
discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for
the removal. At the time of the incident, Complainant was employed as a Building Equipment
Mechanic at the Agency’s Los Angeles Processing and Distribution Center in Los Angeles,
California. The record indicated that Complainant began his position on August 9, 2014, subject
to 90-day probationary period.

Complainant’s supervisor indicated that Complainant was removed from his position because he
failed to meet the requirements of the position. Specifically, the supervisor stated that he
decided to remove Complainant during his probationary period due to his unsatisfactory
performance, his failure to follow instructions, and his unsatisfactory attendance. The supervisor
also indicated and Complainant does not dispute that Complainant also performed his work in an
unsafe manner (while he was in the Industrial Battery Shop); and he was observed sitting down
on a scooter talking on his personal cell phone when he was on the clock.

Complainant maintained that he was differently treated than others and identified three
employees (Hispanics, males) who were not terminated as he was. We, however, find that the
record indicates that those individuals were not similarly situated employees since they did not
report to Complainant’s supervisor. Complainant also mentioned another employee (Black,
male) who reported to Complainant’s supervisor and was also terminated. The supervisor,
however, indicated that the subject employee was terminated during his probationary period not
based on any discriminatory basis but for failure to meet the requirements of the position,
unsatisfactory performance, unsatisfactory attendance, and not following instructions.
Complainant does not dispute the reasons. Complainant indicates on appeal that he did not have
an attendance problem as the supervisor stated. However, Complainant’s evaluation for the
period from September 8, 2014 to October 27, 2014, reflects that among other factors of his
performance, the supervisor rated his dependability, which included his attendance, as
unsatisfactory. Complainant provides no evidence that he indeed worked as scheduled.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, we find that
Complainant failed to show that there were any similarly situated employees not in his protected
groups who were treated differently under similar circumstances. Based on the foregoing, we
find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as he alleged.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 tends 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 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. The requests 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
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.
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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

May 18, 2017
Date