U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Angelo P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120180899
Agency No. 4K-300-0060-13
DECISION
On January 10, 2018, 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
December 15, 2017 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the relevant time, Complainant worked as a Sales, Services Distribution Associate at the
Agency’s Post Office in McDonough, Georgia.
On May 1, 2013, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), color (black), sex (male),
and/or age (53) when:
1. from November 2012 and ongoing, he has not been allowed to report to work early for
pre-tour overtime opportunities;
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.
01201808992
2. on December 22, 2012, he was charged absent without leave (AWOL);
3. on December 24, 2012 his request for change of schedule was denied, and he was forced
to use two hours of annual leave;
4. on December 31, 2012, management first approved his request to work the holiday
overtime on January 1, 2013, but later denied his request;
5. on February 18, 2013, his request to work overtime on the holiday was denied;
6. on unspecified dates, he was denied overtime while overtime was offered to his co-
workers;
7. his leave request from May 2, 2013 until May 4, 2013 was denied; and
8. he was informed that he was no longer to train any window clerk.
After an 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.2
This appeal followed.
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”).
2 The record reflects that in October 2104, an EEOC Administrative Judge (AJ) granted the
Agency’s Motion for Summary Judgment. However, no written decision by the AJ was ever
issued, and in April and September 2016, Complainant requested that the Agency issue a final
decision. Thereafter, when the Agency failed to issue a final decision, Complainant filed an
appeal with the Commission’s Office of Federal Operations. The matter was remanded to the
Agency for issuance of a final decision. See Angelo P. v. United States Postal Service, EEOC
Appeal N0. 0120172296 (November 3, 2017).
01201808993
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, he
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). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).
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).
Even assuming that Complainant established a prima facie case of discrimination, we find further
that the Agency articulated legitimate, non-discriminatory reasons, for the alleged discriminatory
conduct.
Regarding claim 1, Complainant alleges that he was not permitted to report early to work pre-
tour overtime. According to the record, Complainant wanted to begin work at 5:00 a.m., over 4
hours before his regular start time at 9:00 a.m. which would put him into penalty overtime in
violation of Agency policy. The record further indicates that Complainant worked before tour
overtime on 67 separate occasions from November 1, 2012 through June 30, 2013 for a total of
95.08 hours.
Regarding claim 2, Complainant was charged as AWOL when he did not report his absence on
December 22, 2012, in accordance with Agency policy. Complainant called and informed a co-
worker on December 22, 2012 that he would not be in that day. However, the Agency’s
Employee Labor Manual requires an employee to report their absences to the appropriate
management official, which in this instance was his supervisor. Because Complainant did not
properly report his absence on December 22, 2012, he was charged AWOL.
01201808994
Regarding claim 3, Complainant contends that his request for a schedule change was denied and
he was forced to take two hours of annual leave on December 24, 2012. According to the record,
the Agency planned to close the customer service window early because it was Christmas Eve.
As a consequence, all window clerks including Complainant would have to take leave for the
remainder of the day to total 8 hours.
Regarding claim 4, Complainant alleges that the Agency first approved, but later denied, a
request to work overtime on the New Year’s Day holiday, January 1, 2013. Complainant’s
supervisor indicates that initially three employees, including Complainant, were approved to
work the holiday in anticipation of high package volumes. However, it was later discovered that
the mail volume was lighter than expected. In addition, the record indicates that Complainant’s
supervisor received complaints from Complainant’s co-workers that Complainant disappeared
for large periods of time while on duty and failed to “pull his own weight” regarding the
scanning and processing mail. Complainant’s supervisor indicated complaints about working
with Complainant, as well as the light volume of mail, led him determine that Complainant was
not needed to work the January 1, 2013 holiday.
Regarding claim 5, the record discloses that Complainant acknowledges that he did not request
to work overtime on February 18, 2018. However, Complainant alleges that the Agency failed to
allow him the opportunity to volunteer to work the President’s Day holiday on February 18,
2018. Complainant failed to provide evidence in support of his contention. The record further
indicates that Wednesday is Complainant’s regular non-scheduled day.
Regarding claim 6, Complainant contends that the Agency denied his request to work overtime
on specified Wednesdays in March and April 2013. Complainant contends further that the
Agency, instead, allowed similarly situated co-workers to work overtime on those Wednesdays
in March and April 2013. However, the record indicates that the employees named by
Complainant were not working overtime on their respective off days. Rather, the Agency
indicates that the named employees worked straight time on the Wednesdays in question.
Moreover, the record establishes that Complainant worked overtime on his non-scheduled
Wednesdays on eight occasions from November 1, 2012 to June 30, 2013.
Regarding claim 7, Complainant alleges that the Agency denied his request for annual leave
from May 2-4, 2013. However, the record indicates that, in accordance with Agency policy, a
maximum number of clerks may be afforded annual leave on a single day. The Agency approved
annual leave for Complainant on May 2 and 3, 2013. However, Complainant’s request for leave
on May 4, 2013, was denied because granting leave on that day would have exceeded the
allowable number of leave requests for clerks.
Finally, regarding claim 8, Complainant alleges that the Agency informed him that he could no
longer train window clerks as he had done previously. However, according to the record, the
Agency determined that Complainant had to reduce the number of employees he trained during
customer service hours because of customer complaints.
01201808995
Specifically, the record indicates that while Complainant was training window clerk employees,
retail customers complained that there were long wait times, that the clerk was rude and
unfriendly, and the clerk was talking with other employees during transactions. The Agency
determined that Complainant’s on-the-job training of window clerk employees negatively
impacted the window service for customers.
After careful review of the evidence of record, we conclude that Complainant has failed to prove,
by a preponderance of the evidence, that the Agency’s explanations were pretext for
discrimination.
Finally, to the extent that any or all of the subject claims can be construed as part of a harassment
claim, as we have already concluded, Complainant simply has provided inadequate evidence to
support his claim that his treatment was the result of his race, color, sex or age. A case of
harassment is precluded based on our findings that Complainant failed to establish that any of the
actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final
agency 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.
01201808996
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. 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
June 25, 2019
Date
