Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Sep 25, 2015

01-2013-3368-0500 (E.E.O.C. Sep. 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
(Southwest Area),
Agency.

Appeal No. 0120133368

Hearing No. 460-2011-00083X

Agency No. 4G-770-0411-10

DECISION

On September 14, 2013, Complainant filed an appeal from the Agency’s September 4, 2013,
notice of final action 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 notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a Transitional Employee
(TE), working as a City Letter Carrier at the Agency’s North Shepherd Station located in
Houston, Texas. Complainant’s first level supervisor was S1.

The Agency’s regulations and safety practices require a vehicle’s external doors to be closed
“when entering or crossing intersecting roadways.” On September 25, 2010, S1 stated he
observed Complainant driving through an intersection with the sliding door on the driver’s side
of his vehicle open. As a result of observing this safety violation, S1 conferred with the Area
Manager and then placed Complainant on emergency suspension pursuant to Article 16,
section 7 of the Collective Bargaining Agreement. Complainant remained in an off-duty status
until his TE appointment expired on November 2, 2010. Complainant’s appointment was not
renewed.
0120133368

2
On November 3, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male) and in reprisal for prior protected EEO
when:

On September 25, 2010, Complainant was placed on emergency placement.

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
and the AJ held a hearing on July 25, 2013.

The AJ issued a decision on August 20, 2013, finding Complainant failed to establish a prima
facie of sex discrimination since he failed to identify any individual outside his protected class
who was treated more favorably. The AJ noted that Complainant identified a male
comparative, who the AJ determined was not a proper comparative because he was the same
sex as Complainant. The AJ noted that Complainant also identified a female comparative.
The AJ noted it was undisputed that both the male comparative and the female comparative
were terminated from their positions with the Agency after being involved in motor vehicle
accidents.

The AJ noted that Complainant took issue with the fact that neither the male nor the female
comparative were put on emergency placement. The AJ stated the evidence showed that a
16.7 emergency placement is reserved for certain conduct, such as driving through an
intersection with the door open. The AJ found the comparatives identified by Complainant
were not similarly situated because all relevant aspects of their work situations were not
identical.

With regard to the retaliation claim, the AJ noted that Complainant engaged in prior EEO
activity at least a year prior to being on emergency placement. The AJ stated that the prior
EEO activity was against a previous manager at another work facility. The AJ noted that S1
denied being aware of Complainant’s prior EEO activity. The AJ found that even if S1 knew
about the prior EEO activity, Complainant could not establish that this knowledge formed the
basis for S1’s actions a year later.

The AJ also found assuming Complainant could establish a prima facie case of sex
discrimination and retaliation, the Agency provided legitimate, nondiscriminatory and
nonretaliatory reasons for its actions. The AJ noted Complainant was a transitional employee
with limited rights. The AJ noted that any violation of the Agency’s rules could result in his
termination. The AJ stated that S1 alleged that Complainant was observed driving through an
intersection with his door ajar. The AJ noted that S1 testified that this was a serious violation
because at least one other carrier in another state was killed while committing the same
violation. The AJ found that Complainant was not treated less favorably than persons outside
his protected category who were similarly situated. The AJ concluded that Complainant did
0120133368

3
not show that he was the victim of discrimination or that his emergency placement was based
on a discriminatory or retaliatory animus.

The Agency subsequently issued a notice of final action on September 4, 2013. The Agency’s
final action fully implemented the AJ’s finding that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For 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 Constr. Corp. v. Waters,
438 U.S. 567, 576 (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
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to 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, 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. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

After a careful review of the record, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. We find the
0120133368

4
record in the present case fully developed. We discern no basis to disturb the AJ's decision.
In the present case, the record supports the AJ’s finding that the Agency presented legitimate,
nondiscriminatory reasons for its actions. Complainant failed to show that the Agency’s
actions were a pretext for prohibited discrimination or retaliation.

CONCLUSION

Accordingly, the Agency’s final action finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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.
0120133368

5
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 (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

September 25, 2015
Date