Fletcher E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120170103 (E.E.O.C. Dec. 11, 2018)

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

Fletcher E.,1
Complainant,

v.

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

Appeal No. 0120170103

Hearing No. 550-2015-00052X

Agency No. 4F-956-0084-14

DECISION

On September 24, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 15, 2016, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant, a probationary employee, worked
as a City Carrier Assistant (CCA) assigned to the Agency’s Sacramento-Perkins Station in
Sacramento, California. The job description states that a CCA “[d]elivers and collects mail on
foot or by vehicle under varying road and weather conditions in a prescribed area.” During the
relevant time, Complainant’s manager was the Manager, Customer Services, and his supervisors
were Supervisor, Customer Services 1 (SCS 1), and Supervisor, Customer Services 2 (SCS 2).
Complainant was to successfully complete a probationary period of service.

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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Like all provisional employees, Complainant was required to be evaluated periodically during his
probationary period based on the following six factors: work quality, work quantity,
dependability, work relations, work methods, and personal conduct.

Complainant completed on-the-job training on April 8, 9, and 10, 2014, in compliance with
Agency policy and the relevant labor management agreement. Complainant was provided
additional training/observation from April 22 through April 24, 2014, under the direct supervision
of SCS 1, SCS 2 and the Manager, Customer Services. Complainant also received an additional
half day training with an on-the-job instructor, which was not typically given to other probationary
employees.

After 30 days of probationary service Complainant was evaluated as not having attained
“acceptable” performance on four of the six categories evaluated. After 60 days of probationary
service Complainant’s performance was evaluated as unacceptable in all six categories. The
Manager, Customer Services issued Complainant a Notice of Separation, effective May 15, 2014.

On August 16, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of race (African-American) when:

1. Complainant was not provided with proper instruction and equipment;
2. Complainant was belittled and yelled at; and
3. Complainant was terminated during his probationary period.

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 requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing on August 30, 2016.

In his decision, the AJ found the Agency articulated neutral, nondiscriminatory and legally
sufficient reasons to end Complainant’s probationary service, related mainly to his performance
problems. The AJ noted the reasons were documented and corroborated, there was no evidence to
the contrary, and there was no evidence of pretext. The AJ stated there was no evidence indicating
that any employee, similarly situated to Complainant and of a different race, was not similarly
terminated for similar performance shortcomings observed after 60 days of their probationary term
of employment.

The AJ noted that with respect to Complainant’s performance, SCS 1 stated that he was not
receptive to training; that he failed to properly complete timesheets, and loading and delivery tasks
after hands-on instruction; and that he was unable or unwilling to use equipment after he had been
trained. The AJ found Complainant’s assertion that the documents and records corroborating his
shortcoming were inaccurate was not supported by any evidence.

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The AJ noted Complainant’s opposition to the Agency’s motion for summary judgment was
largely based on the knowledge and experience of his father, a current or former employee of the
Agency. However, the AJ noted Complainant’s father was not a witness in the proceedings, did
not provide his observations under oath or penalty of perjury, and that the Agency was not afforded
the opportunity to take his deposition in order to subject him to cross examination. The AJ noted
he would have granted the Agency’s motion to strike his testimony had it so moved.

The AJ noted that Complainant’s representative speculated that all training provided to
Complainant and to all provisional employees assigned to the Sacramento-Perkins Station under
the Manager, Customer Services and the other Station officials involved was inadequate and that
the Manager, Customer Services was “incompetent.” The AJ found these were unsworn opinions
of Complainant’s representative and were unsupported by an evidence. The AJ noted that
Complainant’s representative stated that training was handled differently at different Agency
facilities. However, the AJ noted that factors such as management incompetence, poor training,
and/or different approaches to raining, by themselves, do not reflect racial animus even if they
were true. The AJ also noted that Complainant’s assertion that he was yelled or pointed at, and
told that he wanted the job “because of the money” does not reflect racial animus.

The AJ found it immaterial, as Complainant’s representative speculated, that Sacramento-Perkins
management did not “follow the manual,” did not use the training check-lists properly, did not
follow proper “sign-off” procedures or account properly for “swings” and fueling tasks. The AJ
noted that while none of these assertions was supported by evidence, even if management deviated
from training manual suggestions or the way in which training was handled at different facilities,
there was no evidence reflecting that such deviations, oversights, or irregularities were in any way
motivated by Complainant’s race.

The AJ also found Complainant was unable to establish discriminatory harassment because, even
if true, the allegations taken individually or as a whole, did not reflect that Complainant’s
workplace was so permeated with ridicule, insult, or other conduct hostile to him that it was
sufficiently severe or pervasive to alter the terms and conditions of his employment, interfered
with his ability to perform his job, or otherwise created an intimidating, hostile, or offensive
working environment. The AJ found the matters alleged by Complainant were not uncommon or
remarkable workplace occurrences and there was no evidence in the record that they were abusive
or offensive and undertaken to harass Complainant, or motivated by his race.

The Agency subsequently issued a notice of final action on September 15, 2016. The Agency’s
notice of final action fully implemented the AJ’s finding that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

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On appeal, Complainant acknowledges his representative provided unsworn testimony.
Complainant requests the Commission consider his case “based solely on the sworn testimony of
those individuals representing the Agency.”

In addition, Complainant states that the report of investigation (ROI) showed that he carried route
26034 on April 22, 2014. Complainant notes that his clock rings show that he carried this route in
5 ½ hours. He argues that according to the ROI, the official street inspection for route 26034 is 6
½ hours. Complainant notes he was one hour faster than the official street inspection. He argues
that the omission of this fact by the Manager, Customer Services or SCS 2 is discriminatory.

Complainant also claims he was not issued a right-hand drive vehicle. Complainant notes that
SCS 2 said Complainant was given a left-hand drive vehicle as this was the only vehicle available.
Complainant acknowledges he was trained to operate a left-hand drive vehicle. He states they are
primarily designed for walking or park and loop routes. Complainant states a right-hand drive
vehicle is more suitable for dismount and states his route contained dismounts. Complainant
claims that assigning him a left-hand drive vehicle to perform right-hand drive duties put him at a
disadvantage. Complainant states that SCS 2 noted that his route had 40 or more dismounts or
over the sidewalk deliveries. In contrast, Complainant notes that SCS 1 stated that he did not have
dismount deliveries and implies that SCS 1 was being untruthful.

Complainant requests the Commission disqualify and dismiss the training and refresher training
based on the fact that the Agency did not fulfill Agency requirements. Complainant claims the
union stewards, manager, or supervisor and trainee must certify the training as complete by signing
off on it. Complainant states his training was not in compliance with these Agency requirements.

Finally, Complainant notes that the Manager, Customer Services stated that he and his staff said
they had many discussions with Complainant that were not documented. Complainant states if it
was not documented, it did not happen. Complainant states the Manager, Customer Services and
staff did not talk to him until April 22, 2014.

In response to Complainant’s appeal, the Agency responds to Complainant’s claim that he carried
route 26034 on April 22, 2014 in 5.5 hours, while the inspection of Letter Carrier Route conducted
on March 6, 2014 for Carrier X provided that this route takes 6.5 hours. The Agency states
Complainant failed to demonstrate that the mail volume on April 22, 2014 was similar to that on
March 6, 2014, or that he carried the full route on April 22, 2014. The Agency argues that even if
Complainant did carry the full route on April 22, 2014, and the mail volume was comparable to
March 6, 2014, he has not demonstrated that management did not note this, or that any failure to
note this was due to his protected class. Finally, the Agency states that even if Complainant
delivered a route early on one day, he fails to explain how this one day would outweigh his
otherwise poor performance.

The Agency notes that Complainant provides no basis for his statement that a manager or
supervisor must certify training.

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The Agency also addresses Complainant’s claim that he was given a left-hand drive vehicle, which
he states was primarily designed for walking or park and loop routes. The Agency noted that the
Manager, Customer Services stated that Complainant’s route was mostly a park and loop route,
and that the expansion of street time was far more than could be explained by not having a right-
hand drive vehicle. The Agency notes Complainant failed to provide any evidence, other than his
own self-serving, conclusory statements, that having a left-hand vehicle would have caused his
poor performance.

The Agency responds to Complainant’s claim that SCS 1 stated he did not have dismount
deliveries. The Agency notes the record shows that Complainant did not have dismount deliveries
every day, and thus, SCS 1’s statement was not necessarily inaccurate. The Agency notes that
even if SCS 1’s statement was mistaken, this does not demonstrate discriminatory animus by SCS
1.

ANALYSIS AND FINDINGS

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 (EEO MD-
110), at Chap. 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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that on appeal Complainant does not challenge the AJ’s
definition of the claims raised in his complaint. We find that the record is adequately developed
and there are no disputes of material fact. We also note that on appeal Complainant requests that
his representative’s unsworn statement not be considered.

In the present case, the Agency articulated a legitimate, nondiscriminatory reason for terminating
Complainant during his probationary period, his demonstrated performance deficiencies. Despite
Complainant’s claims to the contrary, he did not provide evidence to establish that he received
insufficient training or improper equipment to perform his job successfully.

We find there was no evidence indicating that any similarly situated employee of a different race,
was not also terminated for similar performance shortcomings observed after 60 days of their
probationary period. Complainant failed to establish that the Agency’s actions were a pretext for
discrimination.

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Additionally, we find that Complainant failed to establish that he was subjected to a hostile work
environment as the actions alleged were not sufficiently severe or pervasive to constitute a hostile
work environment. Moreover, we find Complainant failed to offer any evidence to suggest that
the conduct of which he complains was motivated by his race.

CONCLUSION

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

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.
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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

December 11, 2018
Date