Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Mar 9, 2015

0120130920 (E.E.O.C. Mar. 9, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120130920

Hearing No. 410-2012-00190X

Agency No. 4H-300-0154-09

DECISION
On November 25, 2012, Complainant filed an appeal from the Agency’s October 23, 2012
final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § 621 et seq.

Our review is de novo. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster at an
Agency postal facility in Lithonia, Georgia. On July 20, 2009, Complainant filed an EEO
complaint wherein he claimed that the Agency discriminated against him on the bases of his
race (African-American), age (55) and in reprisal for his prior protected EEO activity when:

1. On February 4, 2009, Complainant was informed that an investigation would be
conducted at his facility prompted by an employee’s complaint.

2. On February 20, 2009, Complainant was issued a Proposed Letter of Warning in
Lieu of a 7-Day Time-Off Suspension and subsequently on April 9, 2009, a Letter
of Decision stating that the charges were fully supported.1

1 Both Letters were ultimately rescinded.

0120130920

2

3. On April 1, 2009, a meeting was held to report the findings of the investigation and
Complainant received a letter outlining the results.

4. On May 19, 2009, Complainant became aware that his Manager had angrily
informed other supervisors that Complainant had filed an EEO complaint against
him.

The Agency dismissed the complaint on the grounds of failure to state a claim. Complainant
filed an appeal with the Commission. In Complainant v. United States Postal Service

, EEOC
Appeal No. 0120093744 (February 25, 2010), the Commission affirmed the Agency’s
dismissal of claims (1) and (3). With regard to claim (2), the Commission found that the claim
was not moot as the Agency failed to address Complainant’s claim for compensatory damages.
The Commission affirmed the Agency’s dismissal of claim (4) with respect to the bases of race
and age. However, the Commission also found that the Agency improperly dismissed the basis
of reprisal. Thus, claim (2) and the reprisal basis of claim (4) were remanded for
investigation.
At the conclusion of 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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
his request. Consequently, the Agency issued a final order pursuant to 29 C.F.R.
§ 1614.110(b).

With regard to claim (2), the Proposed Letter of Warning in Lieu of 7-Day Time-Off
Suspension was signed by the Manager and was based on a charge of Unsatisfactory
Performance and Failure to Follow Instructions. The Agency stated that Charge 1 set forth
that parcels arriving at Complainant’s unit did not have the proper scans. Charge 2 specified
that Complainant was not responding to customer complaints in a timely manner after being
placed on notice of the importance of doing so. The Letter of Decision was issued to
Complainant by another Manager. The Letter of Decision stated that after considering the
evidence of record, the charges were fully supported by the evidence.

Complainant claimed that his race was a factor in the Proposed Letter of Warning given that
the Manager told him that an investigation would be conducted based on allegations from a
Caucasian employee that he was discriminating against Caucasian people. According to
Complainant, Caucasian management employees were not similarly investigated. With respect
to his age claim, Complainant asserted that he was targeted based on his age as the Manager
wanted to remove him from the Agency, unlike younger managers. As to his reprisal claim,
Complainant stated he has engaged in continuous EEO activity since at least 2007, and that the
Manager was aware of his prior EEO activity.

With regard to the claim concerning the Manager angrily informing other supervisors that
Complainant had filed an EEO complaint against him, Complainant asserted that he was told
0120130920

3
by two supervisors that the Manager came to the supervisors’ desks and stated to three
supervisors, “Do you believe [Complainant] filed an EEO against me?” Complainant stated
that the Manager subsequently remarked that Complainant would not be able to prove it. The
Agency noted that one of the supervisors at issue stated that he remembered hearing the
Manager say that Complainant had filed an EEO complaint against him, but he did not recall
the Manager being angry or uttering any statement that Complainant would not be able to
prove it. One of the other supervisors stated that she recalled the Manager commenting that
Complainant had filed an EEO complaint against him.2

The Agency proceeded to address each claim assuming arguendo Complainant had established
a prima facie case. With regard to the Proposed Letter of Warning, the Manager explained
that Complainant had failed to follow his instructions regarding answering his customer
complaints in a timely manner. The Manager stated that responding to customer complaints
within 48 hours was a basic task for a Postmaster. The Manager indicated that Complainant
was afforded several opportunities to correct his performance concerning this issue. According
to the Manager, Complainant also had an EXFC audit that was poor and that this was not the
first time Complainant had received poor results on an audit. The Manager stated that the
Proposed Letter of Warning and the Letter of Decision sustaining it were rescinded because a
portion of Complainant’s appeal rights had been omitted.

The Manager denied that he stated to the supervisors, “Do you believe [Complainant] filed an
EEO against me?” The Manager asserted that in responding to a comment from one of
Complainant’s supervisors that the employees were always filing EEO complaints and could
not understand why, he stated that it was the nature of the job, that Complainant had filed an
EEO on him and that they should not take it personally. The Manager stated that Complainant
goes out of his way to ensure that it is known he has filed EEO complaints against a number of
different managers.

With respect to Complainant’s arguments to establish pretext, the Agency noted that
Complainant did not offer any testimony from witnesses to support his claim that the Manager
took action against him in reprisal for EEO complaints he had filed against his peers. The
Agency stated that the Manager identified thirteen employees of varying ages, both Caucasian
and African-American, who received discipline from him. The Manager stated that each case
is based on its own merit and corrective action is issued when warranted. The Agency pointed
out that two supervisors did not support Complainant’s opinion that the Manager had been
angry in his remark to him, and that one of the supervisors stated that he did not recall the
Manager being angry or making a statement that Complainant would not be able to prove it.
Thereafter, Complainant filed the instant appeal.

2The other supervisor who allegedly heard the Manager’s remarks was asked to provide an
affidavit, but she did not respond to the request from the EEO Investigator.
0120130920

4

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case under the alleged
bases with regard to the matters involving the Proposed Letter of Warning and the Letter of
Decision. We shall also assume arguendo that Complainant has established a prima facie case
of reprisal as to the Manager telling supervisors that Complainant had filed an EEO complaint
against him.

The Agency explained that Complainant was issued the Proposed Letter of Warning and
subsequently the Letter of Decision based on Complainant’s failure to follow the Manager’s
instructions concerning responding to customer complaints in a timely manner and
Complainant’s poor quality on an EXFC audit. As to the alleged remarks made by the
Manager to Complainant’s supervisors, the Manager acknowledged that he mentioned that
Complainant had filed an EEO complaint against him, but denied that he demonstrated anger
toward Complainant. The Manager maintained that he made the remark in the context of a
supervisor complaining about employees always filing EEO complaints and that he told the
supervisors it was the nature of the job and that they should not take it personally. We find
that the Agency has articulated legitimate, nondiscriminatory reasons for the actions at issue.

Complainant attempts to establish pretext by claiming that the Letters were based on trumped
up charges. However, we find that Complainant has not refuted the Agency’s explanation for
why he was issued such discipline. Complainant has not established that he responded to
customer complaints in a timely manner or his EXFC audit quality was not as that described by
the Manager. We therefore find that Complainant was not discriminated against as to this
claim.

With regard to the reprisal claim involving the alleged remarks by the Manager, Complainant
was not present during the conversation, and the witnesses do not fully support Complainant’s
account of what occurred. The Manager acknowledged mentioning that Complainant had filed
an EEO complaint against him but denied that his tone was angry or that he said, “Do you
believe [Complainant] filed an EEO complaint against me?” and that Complainant would not
be able to prove it. Although we do not condone the Manager speaking about Complainant’s
EEO activity in a casual way, we find that a reprisal finding is not warranted in light of the
lack of witnesses to support Complainant’s overall account of what occurred in terms of the
context of the Manager’s remarks. Therefore, we find that Complainant has failed to establish
that the Agency’s explanation was pretext for reprisal.

CONCLUSION
The Agency’s determination that no discrimination occurred is AFFIRMED.

0120130920

5

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.

0120130920

6
RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 9, 2015