0120150255
03-08-2017
Ellsworth S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ellsworth S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150255
Hearing No. 470-2013-00116X
Agency No. 1J-461-0035-12
DECISION
On October 21, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 14, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether Complainant established disability and reprisal discrimination by preponderant evidence.
BACKGROUND
During the period at issue, Complainant worked as a Mechanized Equipment Operator, Level 5 at the Agency's Indianapolis Mail Processing Annex facility in Indiana. On October 25, 2012, he filed an EEO complaint alleging discrimination on the bases of disability and reprisal for prior protected EEO activity when the Agency did not allow him to perform his duties as an On-the-Job (OTJ) Instructor.2 This matter was accepted for investigation.3
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant requested a hearing but subsequently withdrew the request. See AJ August 6, 2014, Order of Dismissal. Therefore, the Administrative Judge assigned to the case remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In the decision, the Agency determined that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
Complainant contends on appeal that his previous EEO complaint (Agency No. 1J-461-0013-12) was settled but the alleged discriminatory behavior continued as the Agency refused to implement its terms. For its part, the Agency contends that rather than offer arguments for the instant appeal, Complainant focused on allegations which are not a part of this complaint. The Agency closes by arguing that the Commission should affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We will assume, without so finding, Complainant has established prima facie cases of disability and reprisal discrimination for purposes of this decision.
We now look to see whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. The Agency stated that though Complainant was allowed to conduct training at times, there were times when he was denied the opportunity because of when he reported to work. According to the Agency, Complainant would report to work at times during the facilities heaviest dispatches and that it was difficult to release employees for training. The Agency further stated that it wanted all training reports to go through the supervisors who could make decision regarding OTJ training in a manner consistent with their needs and did not want a craft employee, like Complainant, making those decisions.
In the final step in the analysis, the inquiry moves to a consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's explanations are unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus towards him based on his disability or prior EEO activity. Complainant presented no such evidence, other than his own beliefs and assertions, to demonstrate pretext. However, such statements and speculation, without corresponding probative evidence, do not suffice to meet his burden. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We therefore find that Complainant has failed to show that the Agency's stated reasons were pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish disability and reprisal discrimination. Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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.
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
__3/8/17________________
Date
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.
2 Complainant's complaint contained other issues but those were dismissed by the Agency for procedural defects or were settled in a previously filed EEO complaint. See Partial Acceptance/Dismissal of Formal EEO Complaint at 54-59. Complainant did not expressly appeal the Agency's procedural dismissals. See Complainant's October 21, 2014, Appeal Statement. Thus, those dismissals are not considered in this decision as the Commission exercises its discretion to review only the issues specifically raised in Complainant's appeal and declines to review uncontested aspects of the Agency's final decision. See EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, at � IV.A (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.").
3 See Agency January 18, 2013, Acceptance Letter at 2.
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