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

Equal Employment Opportunity Commission

May 13, 2015

01-2013-3149-0500 (E.E.O.C. May. 13, 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. 0120133149

Hearing No. 410-2012-00248X

Agency No. 1K-301-0038-11

DECISION
On August 23, 2013, Complainant filed an appeal from the Agency’s July 18, 2013 final order
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 order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor-Trailer
Operator at an Agency work facility in Duluth, Georgia. On November 26, 2011,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the bases of his race (African-American), sex (male), and age (57) when:

1. On July 7, 2011, Complainant was placed on emergency placement in an off-duty
status.

2. On August 4, 2011, Complainant was issued a seven-day suspension.

Complainant subsequently amended his complaint to allege sex discrimination and reprisal
when on December 28, 2011, management suspended his driving privileges.

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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
When Complainant did not object, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision on June 24, 2013.

The AJ found that no discrimination occurred. This matter arose out of a trucking trailer dock
accident that occurred on July 7, 2011, at the work facility. Complainant stated that on July 7,
2011, he was instructed by the Supervisor to relocate a trailer from a dock at the Processing &
Distribution Center to another location. The AJ noted that the Supervisor acknowledged that
he told Complainant that the trailer’s contents and door were secured. The Supervisor stated
that he observed the equipment rolling out of the back of the trailer as Complainant was pulling
away from the dock. Complainant and other personnel placed the equipment back in the
trailer. Complainant stated there was no notable damage to the equipment. According to the
Supervisor, Agency policy provides that the responsibility to ensure that the trailer is secure
and the load is tied down resides with the driver.

Complainant was subsequently placed on emergency placement in an off-duty status by the
Supervisor per instruction from the Manager, Transportation Operations for 22.99 hours
without pay and pending investigative review. Complainant was permitted to return to work
on July 12, 2012, after the investigation was completed. A seven-day suspension was issued
on August 4, 2011, by the Supervisor per instruction from another Manager, Transportation
Operations. Complainant was charged with Failure to Adhere to Safety Rules and Regulations
and Unsatisfactory Work Performance.

Complainant’s driving privileges were suspended on September 7, 2011, and he attended
refresher training on September 23 and November 28, 2011. According to Complainant, he
believed that he should have had his driving duties restored following the training and therefore
he approached the Supervisor on December 27, 2011. Complainant received a letter formally
suspending his driving privileges on December 28, 2011.

The AJ found that Complainant failed to establish a prima facie case of discrimination under
each of the alleged bases. The AJ noted that Complainant claimed that his race and sex were
factors in the emergency placement because other individuals who had the same or similar type
of accident were not placed in an off-duty status. However, the AJ found that Complainant did
not produce evidence to demonstrate that another employee received lesser discipline for
similar violations. With respect to Complainant’s claim of age discrimination, the AJ observed
that Complainant contended that the Agency was attempting to reduce its workforce by forcing
employees to retire. However, the AJ found that Complainant failed to show that any
employee was forced to retire.

The AJ noted that Complainant cited two comparisons in support of his claim. Complainant
argued that a younger, Caucasian female had her driving privileges restored sooner than he
did. The AJ rejected this contention because this comparison did not have her driving
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privileges restored at all and in fact was removed from employment. Complainant cited
another comparison who is an African-American male, within five years of Complainant’s age.
The AJ stated that this comparison was not placed on emergency off-duty status because he
was not cited as at fault for either of the two motor vehicle accidents in which he was involved.

The AJ observed that Complainant argued the July 7, 2011 accident was not his fault. The
Supervisor acknowledged that he informed Complainant the trailer was ready to be pulled out,
but also that Complainant was not told there was no need to check the trailer for compliance
with safety measures. The AJ stated that Complainant failed to check the contents of the trailer
or the trailer door.

With regard to Complainant’s claim of reprisal, the AJ noted that Complainant claimed that
this complaint, filed on November 26, 2011, was a contributing factor in the formal suspension
of his driving privileges on December 28, 2011. Complainant also claimed that his failure to
settle the complaint with the Manager led to reprisal. The AJ rejected this contention noting
that Complainant’s use of what was discussed during the dispute resolution in the pre-
complaint stage as proof of the Agency’s reprisal is impermissible and inadmissible as evidence
to support his claim.

The AJ also rejected Complainant’s claim concerning the formal suspension of his driving
privileges in light of the second safety-related accident involving Complainant. On September
7, 2011, Complainant made contact with a parked vehicle with his Agency vehicle.
Complainant received a fourteen-day suspension on October 11, 2011, for the period of
November 25, 2011 to December 9, 2011. The AJ noted that it is Agency policy in its Safe
Driver Program that supervisors are required to take action when two or more at-fault
accidents occur within a twelve-month period.

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. Thereafter, Complainant
filed the instant appeal.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under each of the alleged bases with regard to each of the three claims. The Agency explained
that Complainant was placed on emergency placement in an off-duty status after the trucking
trailer dock accident where equipment rolled out of the back of the trailer as Complainant was
pulling away from the dock. Complainant was subsequently issued a seven-day suspension
based on this accident. The Agency stated that although the Supervisor informed Complainant
that the trailer’s contents and door were secured, Agency policy provides that Complainant was
responsible for double-checking the accuracy of the Supervisor’s statement. As for the formal
suspension of driving privileges, the Agency stated that this was pursuant to the Safe Driver
Program. According to the Agency, Complainant was involved in another safety-related motor
vehicle accident on September 7, 2011, when his Agency vehicle made contact with a parked
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vehicle. The Agency explained that under the Safe Driver Program, supervisors are required
to take action when two or more at-fault accidents occur within a twelve-month period. We
find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.

Complainant attempts to establish pretext by stating that he was not at fault for the accident that
occurred on July 7, 2011. The Agency concedes that Complainant was told by the Supervisor
that the trailer’s contents and door were secured. However, Agency policy dictates that the
responsibility to ensure that the trailer is secure and the load is tied down ultimately resides
with the driver. In light of that policy, we find that the Agency’s responsive actions were not
attributable to any of the alleged discriminatory bases. With respect to claim (3), Complainant
argues that his initiation of the instant complaint was the precipitating factor in the formal
suspension of his driving privileges. We find that this contention is not persuasive in light of
the Agency’s Safe Driver Program policy that provides for measures to be taken when two or
more at-fault accidents occur in a twelve-month period. For these reasons, the Agency’s final
order is AFFIRMED.

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
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5
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

(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
May 13, 2015