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

Equal Employment Opportunity Commission

Jul 14, 2015

01-2013-2581-0500 (E.E.O.C. Jul. 14, 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. 0120132581

Hearing No. 510-2012-00227X

Agency No. 1G-331-0003-12

DECISION
On June 24, 2013, Complainant filed an appeal from the Agency’s June 6, 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 Maintenance
Mechanic at the Agency’s work facility in Miami, Florida. On December 16, 2011,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the bases of his race (African-American), age (57), and in reprisal for his prior
protected EEO activity when on September 28, 2011, he was issued a Notice of Seven-Day
Suspension for Failure to Follow Instructions and Unsatisfactory Performance.1

The Agency
accepted this claim for investigation.
Complainant also claimed that on September 7, 2011, he was not issued work orders for work
on the road and on an unspecified date, Complainant was told by coworkers a manager had
instructed a supervisor not to allow Complainant to complete job assignments on the road. In a

1 The record reveals that the Notice of Seven-Day Suspension was reduced to a one year Letter
of Warning through a grievance settlement.
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partial dismissal dated December 30, 2011, the Agency dismissed these claims pursuant to 29
C.F.R. § 1614.107(a) (1) on the grounds of failure to state a claim.

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 May 24, 2013.

As to the claims that were previously dismissed by the Agency, the AJ stated that on December
30, 2011, and February 9, 2012, the Agency informed Complainant in writing that if he
disagreed with the Agency’s dismissals, he could raise his objections with the AJ if he
requested a hearing. The AJ stated that subsequent to Complainant’s request for a hearing,
Complainant was provided thirty calendar days to contest the dismissals. In the AJ’s
Acknowledgement and Order, the parties were notified that if Complainant failed to oppose in
writing the dismissal of a claim within the thirty-day time period, then the opportunity to have
the dismissals reviewed by the AJ “shall be deemed waived.” The AJ stated that Complainant
did not seek a review of the dismissals.

The AJ found that no discrimination occurred with regard to the suspension issued to
Complainant. The AJ noted that the suspension notice stated that on September 27, 2011,
Complainant was assigned to travel to the Agency’s Tavernier facility for the purpose of
repairing a mailbox. The suspension notice indicated that Complainant was instructed to bring
tools and other items needed since it was a long distance assignment and he could not return
for additional supplies. The suspension notice stated that Complainant failed to follow
instructions and returned to the Miami facility at approximately 11:30 a.m. without having
gone to Tavernier. Upon being questioned as to why he did not travel to the Tavernier facility,
Complainant responded that he did not have funds to pay the road tolls. The AJ stated that the
Supervisor of Maintenance recorded that due to the delay, the repair of the mailbox had to be
rescheduled for another day and that Complainant’s performance was unsatisfactory.

The AJ found that Complainant failed to set forth a prima facie case of reprisal. According to
the AJ, Complainant’s prior EEO activity occurred from 2002 to 2005, six years before the
matter at issue. The AJ reasoned that the suspension did not follow Complainant’s prior EEO
activity close enough in time and in such a manner to support a retaliatory inference.

The AJ also found that Complainant failed to establish a prima facie case of race or age
discrimination. The AJ stated that Complainant did not demonstrate that anyone outside his
protected classes was treated differently under the same or similar circumstances. The AJ
observed with regard to the two comparisons named by Complainant that there was no
evidence showing that these Maintenance Mechanics had demonstrated unsatisfactory
performance or failed to follow instructions. The AJ also observed that both comparisons are
older than Complainant.

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Assuming arguendo that Complainant had set forth a prima facie case under the alleged bases,
the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for suspending
Complainant. The Supervisor of Maintenance stated that Complainant was issued the
suspension because he failed to perform satisfactorily by not following instructions, which
resulted in wasted time and money. According to the Supervisor of Maintenance, the Miami
area has had toll roads for many years and the Agency’s maintenance vehicles have had
SunPasses which automatically pay the tolls. The Supervisor reasoned that Complainant
should have known that the vehicle was equipped with a SunPass. The AJ noted that the
Supervisor further stated that Complainant also could have taken a different route to Tavernier
on a road that did not charge a toll, which would have taken fifteen additional minutes.

With respect to Complainant’s arguments to establish pretext, the AJ observed that
Complainant maintains that he did not deserve discipline because he was working alone and did
not waste time. Complainant claimed that he tried to call the Associate Office Supervisor but
he did not answer the phone and that he subsequently returned to the facility to ask him what to
do about the tolls because he lacked the funds to pay them. Complainant also argued that he
did not waste time even though he did not leave the facility for Tavernier until nearly two
hours after he received the assignment. Complainant stated that he had to prepare his tools,
get gas, talk to three supervisors and look for a key to the back gate so that he could access the
extra parcel locker. Complainant claimed that he was unaware of the vehicle being equipped
with a SunPass. However, the AJ noted that Complainant’s job included driving the vehicles
in the normal performance of his assigned duties. The AJ found fault with Complainant’s
explanation reasoning that Complainant had the responsibility to inquire about funds for the toll
road before he departed for Tavernier. The AJ stated that had Complainant made such an
inquiry, he would have learned about the SunPass.

Finally, the AJ rejected Complainant’s contention that he received disparate treatment when he
learned of his assignment the day it was to be performed and that he had to do the work by
himself in contrast to the two comparisons who were informed a day in advance. The AJ
stated that the Supervisor of Maintenance was informed by the Tavernier facility that it had
additional items that needed to be fixed and therefore the Supervisor informed the comparisons
of the assignment for the following day. The AJ stated that Complainant did not show what he
was asked to do was unreasonable. The AJ found that Complainant failed to establish pretext.

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.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that he did contest the dismissed claims and that he planned
to discuss them with the AJ at a telephone conference on December 5, 2012. Complainant
states that the AJ could not make the conference and the AJ said it would be rescheduled, but
that did not occur. Complainant argues that he was treated differently than the two
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comparisons when he was sent to Tavernier by himself, without advance notice and he had to
take a replacement cluster box.

In response, the Agency asserts with regard to the dismissed claims that pursuant to the AJ’s
May 10, 2012 Acknowledgement and Order, Complainant was to have set forth his opposition
to the dismissed claims within thirty days of his receipt of the Order. The Agency maintains
that Complainant failed to file anything in opposition to the dismissed claims. As for
Complainant’s reference to a December 5, 2012 telephone conference, the Agency states this
was a settlement conference and it was not the proper time or forum to raise an opposition to
the dismissed claims. The Agency asserts that the AJ canceled the settlement conference after
its representative informed the AJ that the Agency did not intend to submit a settlement offer.
The Agency states that Complainant did not raise his concern about the settlement conference
not taking place until five months after its cancellation.

ANALYSIS AND FINDINGS
Initially, we shall address the matter concerning the dismissed claims. Complainant contends
that he intended to contest these matters at the settlement conference but the conference did not
take place even though he believed it would be rescheduled. We observe that Complainant
raised an objection to the dismissal of these claims when the Agency issued its partial
dismissal. The Agency nonetheless determined that the claims were properly dismissed. The
AJ issued in her May 10, 2012 Acknowledgement and Order instructions that if Complainant
failed to oppose in writing the dismissal of a claim within the thirty-day comment period, the
opportunity to have the dismissal reviewed by the Administrative Judge shall be deemed
waived. There is no indication in the record that Complainant opposed in writing the dismissal
of the claims within the thirty-day comment period. We observe that the Agency filed a
Motion for Summary Judgment on August 23, 2012, and Complainant did not file a response.
We find that Complainant failed to timely raise the dismissed claims with the AJ. On appeal,
these claims shall not be addressed further.

With respect to the suspension issued to Complainant, we shall assume arguendo that
Complainant set forth a prima facie case under the alleged bases. The Agency explained that
the suspension was issued based on Complainant’s failure to perform satisfactorily by not
following instructions, which wasted time and money. The Agency noted that Complainant
had been instructed to go to the Tavernier facility to repair a mailbox. However, Complainant
never reached Tavernier as he returned to his facility in Miami claiming that he lacked the
funds to pay the road tolls. The Agency stated that its maintenance vehicles are equipped with
SunPasses which are used to pay such toll charges. We find that the Agency articulated
legitimate, nondiscriminatory reasons for issuing the suspension to Complainant.

Complainant contends that he did not deserve a suspension as he was unaware that the vehicles
was equipped with a SunPass. Complainant further claims that unlike the two comparisons
who went to Tavernier the following day, he did not receive advance notice of the assignment
and he was expected to perform the assignment by himself. We find that these arguments are
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insufficient to establish pretext. It is evident that Complainant failed to complete his
assignment and his explanation for not following instructions is not sufficient to relieve him of
culpability. As the AJ stated, Complainant was familiar with driving on the area roads and had
he inquired about funds for the toll road, he would have been informed of the SunPass. We
also discern no merit in Complainant’s contention that he was accorded disparate treatment in
how the assignment was handled. The record reveals that the Supervisor of Maintenance was
informed by the Tavernier facility the day that Complainant did not fulfill his assignment that
there were additional items at Tavernier that required work. Thus, the Supervisor assigned
two individuals for that assignment and he was able to give these employees one day of notice.
We find no evidence of any discrimination against Complainant.

CONCLUSION
The Agency’s determination that no discrimination occurred 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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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
July 14, 2015