Jessie G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120140155 (E.E.O.C. Jan. 29, 2016)

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

Jessie G.,1
Complainant,

v.

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

Appeal No. 0120140155

Hearing No. 541-2011-00121X

Agency No. 1E-802-0007-10

DECISION

Complainant filed an appeal from the Agency’s final order dated September 26, 2013, finding
no discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint, dated May 10, 2010, Complainant alleged discrimination based on race
(Hispanic), color (brown), national origin (Hispanic), and in reprisal for prior EEO activity
when: (1) he was not allowed to assume his job bid until on or about December 23, 2009; and
(2) on or about February 4, 2010, he became aware that he was not provided mandatory or
other training for Bulk Mail Technician (BMT) position. Upon completion of the investigation
of the complaint, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). On September 10, 2013, the AJ issued a decision

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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without holding a hearing, finding no discrimination. The Agency’s final order implemented
the AJ’s decision. 2

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. With regard to claim (1), Complainant’s supervisor indicated
that on October 27, 2009, Complainant, who was then a senior Dock Clerk, was offered his
retreat rights to the BMT position at issue at the Agency’s National Distribution Center,
Denver, Colorado. In that offer, Complainant was informed that he was required to pass a
pre-test given at the Denver P&DC and two weeks of training held in Norman, Oklahoma.
Complainant accepted the offer. The Agency indicated that since Complainant had been out of
the BMT position since 2003, he was considered unqualified and was required to complete all
training, prerequisite exam, and the two-week training in Norman, Oklahoma. Complainant
does not dispute this.

The Agency’s training coordinator indicated that after Complainant accepted the BMT position,
he placed him on a waiting list for an earlier training on November 30, 2009, and also
scheduled him for the next training on December 7 – 17, 2009. Complainant completed the
two-week training on December 17, 2009. The Agency indicated that Complainant then had

2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no
challenges to the Agency's dismissal before the AJ or on appeal; therefore, the Commission
will not address that claim in this decision.

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his days off on December 19 and 20, 2009, and had his unscheduled leave on December 21
and 22, 2009, and ultimately assumed his BMT position on December 23, 2009.

With regard to claim (2), Complainant claimed that an employee from the General Mail
Facility told him that there had been mandatory training sessions in January 2010, and all
managers and BMTs attended the training, except him. Complainant’s management denied
having any knowledge concerning any BMT training in January 2010, or on February 4, 2010.

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for the alleged incidents. Furthermore, we find that Complainant
failed to show that he was treated less favorably than a similarly situated employee under
similar circumstances. Based on the foregoing, we find that Complainant failed to show that
the Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.3

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.

3 We note that although the Agency, fully implementing the AJ’s decision, the Agency also found the alleged claims
failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), we need not address such dismissal since we affirmed
the finding of no discrimination concerning the merits of the subject claims.
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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

January 29, 2016
Date