Derrick P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120172742 (E.E.O.C. Dec. 11, 2018)

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

Derrick P.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120172742

Agency No. 4C-440-0105-16

DECISION

On August 9, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 6, 2017 final decision 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.

BACKGROUND

During the period at issue, Complainant worked as a Postmaster, EAS-22, at the Agency’s
Massillon, Ohio Post Office.

On July 6, 2016, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (Caucasian), (male) and in reprisal for prior
protected activity when:

1. on an unspecified date in April 2015, he was denied a detail;

2. on August 17, 2015, he was denied a lateral position;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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3. on September 28, 2015, the posting for the Post Office Operations Manager (POOM)
position he had applied for was cancelled;

4. on November 25, 2016, he was denied a detail to the North POOM position;

5. on January 25, 2016, his request for a lateral position was denied;

6. on February 8, 2016, the posting for the POOM position was cancelled;

7. on April 1, 2016, he was informed he had not been selected for a detail to the
Manager Customer Service Operations (MCSO) position;

8. on an unspecified date, the Postmaster removed his magnetic name placard from his
office door and destroyed it, and subsequently, on August 10, 2016, Complainant was
made to vacate the office;

9. on August 5, 2016, his two lateral transfer requests were denied;

10. on July 27, 2016, North POOM position was posted, Complainant was scheduled to
be interviewed on October 3, 2016, and then rescheduled for October 18, 2016, both
dates that he was out on Family Medical Leave Act (FMLA)/Sick Leave (SL) and
subsequently, on October 24, 2016, the position was cancelled;

11. on October 20, 2016, he was notified that he was not selected for the position of
Manager Customer Service Operations position for Area 2;

12. on or about January 30, 2017, he was bypassed for a detail into the Manager
Customer Service Operations position; and

13. on February 13, 2017, he learned that the North POOM which he had requested to be
non-competitively placed into it was filled non-competitively.2

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On July 6, 2017, the Agency issued the instant final decision
finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

2 The record reflects that reprisal as a basis and claims 8 – 13 were later amended to the instant
formal complaint.
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ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as
addressed below.

Claim 1

Complainant asserted that on an unspecified date in April 2015, he was denied a detail.

The former Postmaster of the Cleveland, Ohio facility (Asian male, unknown prior protected
activity) stated following interviews, he selected a named female Station Manager of the
Westpark, Ohio facility for the Manager Customer Service Operations detail because she had
previously been detailed to a MCO position.

Claim 2

Complainant alleged that on August 17, 2015, he was denied a lateral positon.

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The District Manager (African-American male, no prior protected activity) stated that in August
2016, when he returned to the Northern Ohio District, Complainant was detailed to the North
POOM position and was his direct report. The District Manager stated that on August 17, 2015,
he posted the vacancy for the MPOO North position. The District Manager stated, however, the
posting was cancelled. Specifically, the District Manager he left the named African-American
female in the MPOO position that was posted and cancelled because there was no reason to take
her out of the assignment. Furthermore, the District Manager stated that he did not discriminate
against Complainant based on his race, sex and prior protected activity.

Claims 3 and 6

Complainant alleged that on September 28, 2015, the posting for the Post Office Operations
Manager (POOM) position he had applied for was cancelled; and on February 8, 2016, the
posting for the POOM position was cancelled.

The District Manager acknowledged that the September 23, 2015 and February 8, 2016 postings
for the Post Office Operations (POOM) positions were cancelled because there were not enough
qualified candidates for the subject positions. The District Manager noted that Complainant did
not say anything to him regarding the cancellation of the postings. Moreover, the District
Manager stated that Complainant’s race, sex and prior protected activity were not factors in his
decision to cancel the postings.

Claim 4

Complainant claimed that on November 25, 2016, he was denied a detail to the North POOM
position.

The District Manager stated that there was no detail posting for the North POOM position. The
District Manager further stated that he selected the Postmaster of the Warren, Ohio Post Office
for the assignment.

Claim 5

Complainant asserted that on January 25, 2016, his request for a lateral position was denied.

The District Manager explained that he did not post a detail for the MPOO North and South
positions on or around January 25, 2016. The District Manager further stated that he selected the
Postmaster of the Warren, Ohio Post Office for the MPOO North detail and the Postmaster of the
Salem Post Office for the MPOO South detail.

The record contains a copy of the District Manager’s letter dated January 25, 2016 to
Complainant. Therein, the District Manager placed Complainant on notice that he had elected to
fill both MPOO North and South positions competitively. The District Manager further advised
Complainant to check other vacancies on the Agency’s eCareer website.
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Claim 7

Complainant asserted that on April 1, 2016, he was informed he had not been selected for a
detail to the Manager Customer Service Operations (MCSO) position.

The former Postmaster of the Cleveland, Ohio facility stated that following the interviews, he
selected a named Station Manager of the Solon, Ohio facility for the detail to MCSO position
because she was previously detailed to a MCO position. The former Postmaster stated that he
advised Complainant that if he wanted to be detailed to MSCO in Cleveland, Ohio, he needs to
take a detail for three to six months as a Level 22 Station Manager which would allow him to
evaluate Complainant. The former Postmaster stated at that time Complainant was a Postmaster
in the field and “major metro city operation is not the same as Associate Office operation.”

Claim 8

Complainant asserted that on an unspecified date, the Postmaster removed his magnetic name
placard from his office door and destroyed it, and subsequently, on August 10, 2016,
Complainant was made to vacate the office.

The Postmaster of the Akron, Ohio Post Office (African-American male, no protected activity)
acknowledged removing Complainant’s magnetic name placard and “placed it on his desk, and I
did not destroy it.” The Postmaster stated at that time, he was not instructed by the District
Manager “to do anything. I am responsible for the building. The employee had an assigned
office and [District Manager’s] office was not his.”

Claim 9

Complainant alleged that on August 5, 2016, his two lateral transfer requests were denied.

The District Manager stated that Complainant’s two lateral transfer requests were denied because
the MPOO North and South positions were not filled as of December 9, 2016.

Claim 10

Complainant alleged that on July 27, 2016, North POOM position was posted, Complainant was
scheduled to be interviewed on October 3, 2016, and then rescheduled for October 18, 2016,
both dates that he was out on FMLA/Sick Leave and subsequently, on October 24, 2016, the
position was cancelled.

The District Manager explained that he cancelled the North POOM position vacancy because
one of the three applicants withdrew “because no relocation could be offered.” The District
Manager further stated that he would have arranged an interview with Complainant upon his
return to work.
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Claim 11

Complainant asserted that on October 20, 2016, he was notified that he was not selected for the
position of Manager Customer Service Operations position for Area 2.

The Acting Postmaster of the Cleveland, Ohio facility (African-American female, unknown prior
protected activity) stated that she implemented a review board consisting of three named Agency
officials for the position of Manager, Customer Service Operations for Area 2.3 The Acting
Postmaster stated that 12 candidates applied for the subject position. The Acting Postmaster
further stated that the review committee referred 3 candidates, including Complainant, to her for
interviews.

Following the interviews, the Acting Postmaster selected the named female Level 22 Station and
Branch Manager “based on what I considered ‘Ready Now’ to lead a group of subordinate
Cleveland EAS. [Female candidate] and [Complainant] both had a good interview and all were
considered … qualified. The selection was based on the individual in my opinion that was
‘Ready Now’ and was best suitable for the Leadership Position in the Cleveland City.”

Moreover, the Acting Postmaster stated that Complainant’s race, sex and prior protected activity
were not factors in her decision to select the selectee for the subject position.

Claim 12

Complainant claimed that on or about January 30, 2017, he was bypassed for a detail into the
Manager Customer Service Operations (MCSO) position.

The Acting Postmaster asserted that Complainant was not bypassed for a detail MCSO position
in January 2017. Specifically, the Acting Postmaster stated that the subject position was filled
based on Level 22 Station and Branch Manager who had the most familiarity with Cleveland and
could multi-task both the subject position and the Customer Service Support duties and
responsibilities. The Acting Postmaster noted there were no candidates for the detail at that time.
Furthermore, the Acting Postmaster stated that Complainant did not submit a request to her to be
considered for the subject detail.

Claim 13

Complainant asserted that on February 13, 2017, he learned that the North POOM which he had
requested to be non-competitively placed into it was filled non-competitively.

3 The record reflects that the city of Cleveland, Ohio has 3 MCSO positions and they are known
as Areas 1, 2 and 3.
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The District Manager explained that the North POOM position was filled “on a downgrade
hardship request.” The District Manager further stated that interviews for the subject position
were scheduled for October 3 and 18, 2016, but they were cancelled because Complainant was
on FMLA.

With respect to Complainant’s allegation that he was not selected for the MPOO North position
when he requested a non-competitive lateral prior to February 13, 2017, the District Manager
explained that multiple individuals “requested a non-competitive lateral to the MPOO North
vacancy and all were advised to apply competitively.”

Complainant asserted further that the District Manager selected the named female employee for
the MPOO North position on or around February 13, 2017 non-competitively instead of him,
although he had requested to be placed into the lateral MPOO North position non-competitively
prior to February 13, 2017. The District Manager stated that the named female employee “did
not request a lateral, she requested a hardship downgrade.”

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v.
Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of his protected bases -- in this case, race, sex and prior protected activity.
Only if Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself. Here, as detailed above, the evidence simply does not establish
that the incidents alleged by Complainant occurred because of his race, sex and prior protected
activity.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because
the preponderance of the evidence of record does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

December 11, 2018
Date