Elliot M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 11, 2016

0120143071 (E.E.O.C. Feb. 11, 2016)

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

Elliot M.,1
Complainant,

v.

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

Appeal No. 0120143071

Hearing No. 530-2014-00112X

Agency No. 1C-192-0003-13

DECISION

Complainant filed an appeal from the Agency’s August 26, 2014 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a Mail Handler at the Agency’s Network Distribution Center (NDC) in
Philadelphia, Pennsylvania. On April 19, 2013, he filed an EEO complaint in which he
alleged that his first-line Distribution Operations Supervisor (S1) discriminated against him on
the basis of race (African-American) by placing him in emergency off-duty status on December
19, 2012 and by issuing him a 14-day suspension on January 23, 2013. At the conclusion of
the ensuing investigation, the Agency notified Complainant of his right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew his request. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision

1This 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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concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

S1 averred that on December 19, 2012, Complainant got into an altercation with several casual
employees. According to the report of the incident, Complainant yelled at them and refused to
calm down even after they told him that they were only kidding. When S1 asked Complainant
to provide him with a written statement explaining his side of the situation, Complainant
refused. S1 then notified Complainant that he was being placed in emergency off-duty status
and was not to return to work until December 24th

. After conducting an internal investigation
and obtaining the concurrence of the Customer Services Manager, S1 issued Complainant a
two-week suspension. Investigative Report (IR) 97, 99, 108, 117-20.
ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions involving discipline
unless there is evidence of a discriminatory 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 prevail on his disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that S1 was motivated by unlawful
considerations of his race in connection with his decision to place him in emergency off-duty
status and later suspend him. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can prove the existence of an
unlawful motivation by presenting documents or sworn testimony showing that the reason
articulated by S1 for disciplining him is pretextual, i.e., not the real reason but rather a cover
for race discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing
Burdine, 450 U.S. at 253. Evidence of pretext can include discriminatory statements or past
personal treatment attributable to S1, comparative or statistical data showing differences in
treatment across racial lines, unequal application of Agency policy, deviations from standard
procedures without explanation or justification, or inadequately explained inconsistencies in the
evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No.
0120141697 (November 12, 2015).

When asked by the investigator why he believed that S1 had discriminated against him when he
was placed off-duty and suspended, Complainant conceded that race was a factor only in the
former. IR 80. He averred that a White male employee who had been in an argument with
another employee was not sent home as he was. Complainant acknowledged, however, that
the Comparative was a supervisor rather than a line employee and was not under S1’s
authority. He also admitted that he had no documentary evidence to support his belief that he
was put on emergency placement because of his race. IR 75-77. In view of the lack of any
sworn statements from other witnesses or documents that contradict S1’s explanation or call
S1’s veracity into question, we concur with the Agency that Complainant failed to establish the
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existence of an unlawful motive on the part of S1 in connection with either disciplinary action
at issue.
CONCLUSION

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

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.
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
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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

February 11, 2016
Date