Werner K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120181565 (E.E.O.C. Aug. 8, 2019)

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

Werner K.,1
Complainant,

v.

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

Appeal No. 0120181565

Agency No. 4C450011617

DECISION

On April 5, 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
March 8, 2018, 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 as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant seeking a
Maintenance Custodian position at the Agency’s Cincinnati Processing and Distribution Center
(P&DC) in Cincinnati, Ohio. The P&DC’s Maintenance Operations Manager (MOM)
interviewed Complainant and recommended him, along with other interviewees, for the custodial
position. The Human Resources Local Services Office (HR) informed MOM that Complainant
had been previously terminated by the Agency for Safety and Poor Performance because he had
violated the Agency’s driving policy in 2013, and thus was ineligible for consideration. The HR
Generalist explained that when anyone is terminated with this type of infraction, he or she will
not be rehired. As a result, the HR Specialist stated that Complainant was deemed unsuitable

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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because of the previous driving violation and because the custodial job he desired required
driving.

On November 1, 2017, Complainant filed an EEO complaint alleging that the Maintenance
Operations Manager discriminated against him based on his race (African American) and sex
(male) when, on August 2, 2017, he received a letter stating that he was not eligible for the
position of Maintenance/Laborer Custodian and thus would not be hired. After 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.

The Agency found that Complainant satisfied the first and second prong of the prima facie case
of race and sex discrimination in that he is a Black man who had suffered an adverse
employment action when he was not hired for the custodial position at P&DC. However, the
Agency decided that he did not satisfy the third prong of identifying a similarly situated person
who was treated more favorably. The Agency noted that Complainant argued that a coworker
(CW) who had worked at P&DC was fired in 2017 for a safety violation and rehired. However,
the Agency found that CW was not similarly situated because his termination occurred four years
after Complainant was fired and they had different decision makers who dismissed them and
entertained their requests to return to work, resulting in different outcomes. Lastly, the Agency
noted that CW is Black male like Complainant and thus was not a proper comparator since he
did not fall outside Complainant’s protected groups. Accordingly, the Agency decided that
Complainant did not establish a prima facie case of disparate treatment.

The Agency noted that, even if Complainant had made out a prima facie case, it still would have
found no discrimination because management had articulated legitimate, nondiscriminatory
reasons that justified its actions. The record reflects that MOM recommended Complainant for
the custodial position but HR rejected him because of his safety violation. In that Complainant
failed to produce any evidence indicating that his race or sex, and not his negative personnel
record, drove management’s decision not to hire him, the Agency found that Complainant had
not been subjected to discrimination in violation of Title VII. 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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

On appeal, Complainant argues that he researched whether there were any safety infractions in
his employee file and none were found. According to the record, a Postal Service Labor
Relations Specialist had informed Complainant by letter dated October 1, 2018, that he examined
Complainant’s file and found that he did “not have any negative safety related issues in [his]
eOPF from 2013.” However, the Commission finds that documentation in the record supports
management’s reason for Complainant’s nonselection.

Although the PS 50 form may not have been in Complainant’s employee file when the Labor
Specialist reviewed it in 2018, the record contains a Notification of Personnel Action Form dated
June 7, 2013, which indicates that Complainant was separated from his job at the Agency in
2013. In the comment section, the form states “SEPARATION – EMPLOYEE WAS
SEPARATED FOR PERFORMANCE ISSUES AND SERIOUS SAFETY INFRACTION.”
Additionally, Complainant noted on his job application that he had been previously terminated
by the Agency, and on his Alternative Dispute Resolution (ADR) form, Complainant requested
that the safety violation be removed from his PS Form 50 as a resolution. Therefore, the
Commission has no reason to disbelieve the Agency’s reason for its action or find that it was
pretextual. Moreover, in that Complainant does not deny that he committed a safety infraction
that involved driving and he did not offer any evidence from which we could infer that his race
or sex was the true reason for the nonselection, we find that the Agency’s decision should remain
undisturbed.

CONCLUSION

Accordingly, the Commission AFFIRMS 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;
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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. 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

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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

August 8, 2019
Date