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

Equal Employment Opportunity Commission

Sep 25, 2019

2019000890 (E.E.O.C. Sep. 25, 2019)

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

Kimber L.,1
Complainant,

v.

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

Appeal No. 2019000890

Hearing No. 532-2016-00105X

Agency No. 4C450004616

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 25,
2018, final order concerning an equal employment opportunity (EEO) complaint claiming
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 City Carrier Associate (“CCA”) at the
Agency’s South Columbus Post Office in Columbus, Ohio.

On April 19, 2016, Complainant filed a formal EEO complaint. Complainant’s complaint alleged
the following claims:

1. The Agency unlawfully discriminated against Complainant based on race
(African-American) when:

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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a. on February 22, 2016, Complainant was issued a 14-day Suspension;
and

b. on April 26, 2016, Complainant was issued a Notice of Removal.

2. The Agency unlawfully discriminated against Complainant based on sex (male)
and in reprisal for prior protected EEO activity when, on or about April 9, 2016,
Complainant was not paid full pay for hours worked.

After an investigation of the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ).2 Complainant timely
requested a hearing. The Agency submitted a Motion for a Decision Without a Hearing
(“Motion”) on August 3, 2018. Complainant did not respond to the Agency’s Motion. On
September 26, 2018, the AJ issued a decision, by summary judgment, in favor of the Agency.

On October 25, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of
no discrimination.

The instant appeal followed. On appeal, Complainant does not submit additional statements or
briefs and does not appear to dispute the merits of the AJ’s decision.

ANALYSIS AND FINDINGS

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines
no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law.

2 The report of investigation indicates that Complainant did not complete or submit an affidavit.

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Here, Complainant has failed to point with any specificity to particular evidence in the
investigative file or other evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

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 a complainant to prevail,
he or she must first establish a prima facie case 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, non-discriminatory 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).

In her decision, the AJ summarily adopted and incorporated by reference specific parts of the
Agency’s August 3, 2018 Motion pertaining to the Agency’s legitimate non-discriminatory
reasons for its actions. We agree with the AJ’s finding that the Agency articulated legitimate
non-discriminatory reasons for its actions.

Regarding claim 1(a), Complainant’s second-level supervisor (“S2”) stated that she conducted
the pre-disciplinary interview and requested Complainant’s suspension. S2 explained that
Complainant requested, on a Thursday, leave for the following Friday and Saturday because he
claimed that he had a scheduled appointment with urgent care even though urgent care did not
schedule appointments in advance. Nevertheless, S2 explained that Complainant’s supervisor
disapproved his leave requests “based on the needs of the service.” However, S2 stated that
Complainant failed to report to work on Friday and Saturday. S2 further stated that Complainant
failed to contact his supervisor or call the Agency’s hotline to notify them of his absence from
work.
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S2 further explained that all employees are required to call management by 3:00 pm regarding
their absences; to follow their supervisor’s instructions; and be in regular attendance at work. As
a result, S2 stated that she marked Complainant Absent Without Leave (“AWOL”).

The Area Manager (“M1”) stated that she concurred with the decision to issue Complainant a 14-
day suspension. M1 stated that the request for discipline and documentation supported that
Complainant was AWOL.

The record includes a copy of Complainant’s 14-day Suspension notice, dated February 22,
2016. The notice indicates that Complainant was AWOL on February 13th and 14th, 2016. The
notice explains that Complainant requested leave for these days, but management disapproved
Complainant’s request and Complainant failed to report to work on the two days at issue. As a
result, the notice further explains that Complainant violated the following provisions of the
Employee and Labor Relations Manual (“ELM”): section 665.14: Requirement of Regular
Attendance, section 511.43: Employee Responsibilities, and section 665.42: Absence Without
Permission. The notice also indicates that Complainant exhibited “unsatisfactory work
performance” when on February 16, 2016, he delivered his route out of order, he failed to submit
a PS Form 3996, and he failed to notify management by 3:00 pm of his late return time. As a
result, the notice states that Complainant violated ELM section 665.13 Discharge of Duties and
section 665.15: Obedience to Orders. Lastly, the notice mentions that Complainant had received
a 7-day suspension in 2016 and a Letter of Warning in 2015.

Regarding claim 1(b), one of Complainant’s immediate supervisors (“S1”) testified that he
completed the pre-disciplinary interview and requested discipline for Complainant. S1 explained
that Complainant deviated from his route on April 9, 2016 by driving down an alley and hit a
stationary pole while attempting to avoid hitting a cat in the alley. S1 stated that he requested
removal because Complainant had been disciplined in the past with a 14-day suspension and a
removal was the “next step.” S1 further stated that this accident was preventable if Complainant
had not deviated from his assigned route.

S2 stated that she concurred with the decision to issue Complainant a removal notice. S2
explained that Complainant was issued the removal notice for failure to follow safety procedures
and failure to follow instructions. Specifically, S2 explained Complainant deviated from his
route by driving down an alley and sustained a vehicular accident and injury while driving in the
alley. S2 stated that Complainant had no reason to drive in the alley because there were no
mailboxes in the alley.

The record includes a copy of Complainant’s April 25, 2016 Notice of Removal. The notice
indicates that Complainant was removed for “unsafe act [and] failure to follow instructions.”
The notice referenced Complainant’s vehicular accident while driving in an alley which was not
part of Complainant’s authorized line of travel for his assigned route.

Regarding claim 2, S2 stated that because Complainant was not a regular employee, he was only
paid for the hours he would have worked.
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S2 explained that Complainant was short 0.19 hours pay on April 9, 2016 because he was off
duty after being injured in the vehicular accident. S2 explained that Complainant was not a
regular employee and had to use 24 hours of leave after his work injury before he could use
Continuation of Pay. S2 further explained that Complainant’s supervisor incorrectly entered
Complainant’s leave into the computer system, and S2 made the adjustment, corrected
Complainant’s pay, and Complainant was paid. Because Complainant was a CCA and not a
regular employee, S2 explained that his work hours are not automatically entered into the
timekeeping system. Thus, S2 explained that the error was “simply a mistake” which she
resolved.

We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s race, sex, and reprisal for prior
protected EEO activity.

The Agency's final order implementing the AJ's finding of 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

September 25, 2019
Date