Alfonzo H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120171486 (E.E.O.C. Dec. 11, 2018)

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

Alfonzo H.,1
Complainant,

v.

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

Appeal No. 0120171486

Agency No. 4F-920-0047-16

DECISION

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 2, 2017, 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.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove he was
subjected to unlawful discrimination when the Manager of Customer Services (Manager) failed to
provide him with a letter of recommendation.

BACKGROUND

Complainant previously worked as a City Carrier Assistant at the Agency’s Southside Station in
Fontana, California. Complainant resigned from the Agency on June 29, 2014.

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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In his resignation letter, Complainant claimed that the Agency failed to be a “real equal opportunity
employer” and cooperate with him as a “valuable Muslim-American employee” regarding his
leave request.

On March 26, 2016, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him on the bases of race (Arab), national origin (Syria), religion (Muslim),
and in reprisal for prior protected EEO activity when:

1. In June 2014, he was forced to resign after management refused his request for a
month of leave as a religious accommodation; and

2. On or about February 12, 2016, the Manager refused to provide Complainant with
a letter of recommendation.

In a decision dated April 11, 2016, the Agency dismissed claim 1 on the basis that it was initiated
by untimely EEO Counselor contact, and claim 2 on the basis that it failed to state a claim.
Complainant appealed the matter to the Commission, and in a decision dated July 7, 2016, the
Commission affirmed the dismissal of claim 1 but reversed the dismissal of claim 2. Alfonso H.
v. U.S. Postal Serv., EEOC Appeal No. 0120161584 (July 7, 2016). Consequently, the
Commission remanded claim 2 to the Agency for further processing.

During the investigation of claim 2, Complainant stated that he was forced to resign because he
requested 30 days of annual leave for fasting during Ramadan, and because the Agency hates Islam
and Muslims. Complainant stated that while employed with the Agency, the Manager agreed to
provide him with a letter of recommendation. Complainant further stated that on January 27, 2016,
he called the Manager, who again agreed to provide him with a letter of recommendation and
confirmation of his outstanding work performance.

Complainant stated that he subsequently attempted to contact the Manager, but the Manager kept
ignoring him and did not respond. Complainant stated that the Shop Steward provided him with
a letter of recommendation.

Final Agency Decision

After the investigation of claim 2, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, 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. Specifically, the Agency found that
Complainant did not establish a prima facie case of discrimination on the bases of race, religion,
or national origin because he did not show that similarly situated individuals outside his protected
classes were treated more favorably under similar circumstances.

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The Agency also found that Complainant did not establish a prima facie case of reprisal because
his only EEO activity occurred when he initiated EEO Counselor contact for this case on February
16, 2016, and the events in claim 2 occurred before this contact. The Agency also concluded that
Complainant did not prove that the Agency’s nondiscriminatory explanation for its action was
pretext for unlawful discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that management is destroying his future job prospects. The
Agency reiterates its contention that Complainant failed to prove he was subjected to unlawful
discrimination.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Disparate Treatment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, he must first establish a prima facie case 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. 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); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

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In this case, for purposes of analysis, we assume arguendo that Complainant established a prima
facie case of discrimination.2 Nonetheless, we find that the Agency provided legitimate,
nondiscriminatory reasons for its actions. Specifically, the Manager (African-American, Baptist)
stated that Complainant requested that he provide a letter of recommendation, but the Manager
was “very, very busy at the time.” Report of Investigation (ROI), Affidavit A, p. 3. He stated that
Complainant’s initial request was initially made via a call to his personal telephone, and he recalled
seeing messages from Complainant on his personal phone. The Manager stated that he did not
understand why Complainant called his personal phone; he should have called him on the work
phone.

The Manager further stated that he never refused Complainant’s request for a letter of
recommendation, but Complainant was “very impatient and became very demanding.” Id. The
Manager stated that Complainant’s last text message to him about the matter was “a little over the
top,” and he did not care for the tone of it. Id., p. 9. The Manager stated that he subsequently
learned from Human Resources that the Agency does not permit the issuance of letters of
recommendation, and no other employee has requested such a letter.

Complainant maintains that the Manager did not provide a letter of recommendation because of
racial/national origin discrimination and his request for annual leave to observe Ramadan.
However, Complainant acknowledged that he was not aware of any other employees who were
given a letter of recommendation from the Manager. Regarding the letter of recommendation, we
simply are not persuaded that the Manager was motivated by animus against Complainant’s race,
religion, national origin, or EEO activity. Instead, we are persuaded that the Manager’s reluctance
to provide the letter was attributable to his busy work schedule, as well as irritation over
Complainant’s repeated demands and persistence about the letter. Therefore, we find that the
Agency properly found that Complainant was not subjected to unlawful discrimination because he
did not prove that the Agency’s nondiscriminatory explanation is pretext for unlawful
discrimination.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision for the reasons
set forth herein.

2 However, we note that the Agency erred when it found that Complainant had not engaged in
EEO activity until he initiated EEO Counselor contact for this complaint on February 16, 2016.
The record reveals that Complainant previously requested reasonable accommodation for his
religious beliefs in 2014. A request for reasonable accommodation is EEO activity. See Stearns
v. Dep’t of Veterans Affairs, EEOC Appeal No. Appeal No. 0120100499 (Sep. 11, 2011).

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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. 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

December 11, 2018
Date