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

Equal Employment Opportunity Commission

Mar 25, 2015

0120132569 (E.E.O.C. Mar. 25, 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. 0120132569

Hearing No. 520-2013-00207X

Agency No. 4B-117-0056-12

DECISION
On June 18, 2013, Complainant filed an appeal from the Agency’s final order 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008,
42 U.S.C. § 2000ff et seq. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a Level 7 Bulk Technician at the Agency’s Main Post Office in
Rockville Centre, New York. On August 28, 2012, Complainant filed an EEO complaint in
which he alleged that two Customer Service Supervisors (S1 and S2) discriminated against him
on the bases of race (Caucasian), color (White), age (50), in reprisal for prior EEO activity,
and genetic information (balding) between April 24 and June 5, 2012, as described herein.

Complainant alleged that, on the bases listed above, S1 bypassed him for opportunities to work
overtime on Saturday, his non-scheduled day. IR 95-98. S1 averred that he was responsible
for determining on a day-to-day basis whether and to what extent overtime was needed, and
that, due to very low mail volumes on Saturdays, there were very few overtime opportunities
for Complainant. IR 141-42.

0120132569

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Complainant next alleged that on the bases he identified in his complaint, S2 refused to pay
him for 43 units of time that he worked on May 22, 2012, effectively docking his pay. IR 99-
101. S2 responded that she changed those 43 units of time to absence without leave when she
found out that Complainant was late due to a mandatory training session and that he lied to S1
about his tardiness. S1 later issued Complainant a 7-day suspension for failure to follow
instructions and absence without leave. IR 150-51, 202, 205.

Finally, Complainant alleged that S2 made a comment to Complainant in public, referring to
him as “white and balding.” IR 95, 101-02. S2 admitted making the comment in jest and
acknowledged that she was disciplined for it. IR 152.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case determined sua sponte that the complaint did not warrant a hearing and over
Complainant's objections, granted summary judgment on May 30, 2013. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory or retaliatory motivation on the part of the officials responsible
for those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248,
259 (1981). Therefore, in order to warrant a hearing on his disparate treatment claim,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether S1 was motivated by unlawful considerations of race, color, age, previous EEO
activity or genetic information when he bypassed Complainant for Saturday overtime, or that
S2 was motivated by those same considerations when she docked his pay. See 29 C.F.R.
§ 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).
Such evidence can take the form of discriminatory statements or past personal treatment,
comparative or statistical data, or unequal application of Agency policy. Richardson v. United
States Postal Service, EEOC Appeal No. 01912009 (August 29, 1991). It can also take the
form of a deviation from standard procedures without explanation or justification. Hovey v.
Department of Housing and Urban Development

, EEOC Appeal No. 01973965 (August 31,
2000).
S1 and S2 articulated legitimate and nondiscriminatory reasons for each of the incidents at
issue in this complaint. With respect to the pay-docking incident in particular, S2’s affidavit
testimony that Complainant had been absent without leave and had lied about it has been
corroborated by the contemporaneously prepared notice of suspension for that same incident.
While Complainant expressed his belief that the actions taken by S1 and S2 were
discriminatory, he has not presented any sworn statements from other witnesses or documents
that contradict the explanations provided by those supervisors. The Commission has long held
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that unsupported assertions by a Complainant are not sufficient evidence of discriminatory
motivation. Porter v. Department of the Navy

, EEOC Petition No. 03800087 (January 14,
1981). With regard to the “white and balding comment,” we find it isolated and insufficiently
severe to create a hostile work environment. We therefore find, as did the AJ, that
Complainant failed to raise a genuine issue of material fact with regard to any of the foregoing
incidents.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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).
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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

(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 25, 2015