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

Equal Employment Opportunity Commission

Dec 4, 2018

0120172960 (E.E.O.C. Dec. 4, 2018)

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

Odell H.,1
Complainant,

v.

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

Appeal No. 0120172960

Hearing No. 560201600143X

Agency No. 4E640007715

DECISION

On September 1, 2017, 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
July 27, 2017 final decision concerning his equal employment opportunity (EEO) complaint. He
alleged 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Manager, Customer
Services, at the Agency’s KCK Wyandotte West Station facility in Kansas City, Kansas.

On July 23, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him
to a hostile work environment and discrimination him on the bases of sex (male), age (54), and
reprisal for prior protected EEO activity under Title VII 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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1. on various unspecified dates and ongoing, Complainant had been working
without adequate staffing and was given misleading information;
2. on an unspecified date in July 2015, he was not selected for the Desoto
Kansas Postmaster position;
3. on or about October 7, 2015, and ongoing, his work schedule was
significantly changed; and
4. on an unspecified date and ongoing, he was informed he would be
delivering mail.

The Agency accepted the complaint and conducted an investigation which revealed the following
pertinent evidence:

Claim 1 – Worked Without Adequate Staffing and Given Misleading Information (Alleged
Retaliation Only)

Complainant reported to the Manager of Post Office Operations, Mid-America District (“S1”)
(male). Complainant had prior EEO activity, but S1 denied having any knowledge of it before
the events at issue. Complainant conceded he did not know if S1 was aware of his prior
complaint.

Complainant claimed that S1 forced him to work without adequate staffing, resulting in he and
his subordinate supervisors being forced to do more and more craft work, including having to
work on Saturdays. He further stated that he was told to have two of his subordinate supervisors
trained to work as window clerks and was told the other offices in Kansas City were doing the
same, but later found out that that was not the case.

He asserted that an audit (“F-4 Audit”) was conducted of his office in April 2015, that indicated
a need for 6.37 clerks, but he only had 4 clerks. He said that when he discussed staffing with S1,
he was told to train and use his subordinate supervisors. Complainant named comparators, in his
position in other offices: C1 (male, no prior EEO activity); C2 (male, no prior EEO activity), and
C3 (male, prior EEO activity). Complainant alleged the three comparators were treated more
favorably because they did not have to performance craft work. However, he indicated he did
not know anything about their staffing levels.

S1 averred that he did not realize the amount of time Complainant and his team were spending
working the mail until the F-4 review. S1 stated that the other managers named by Complainant
as comparators were also challenged with staffing, as was the entire city, and that other managers
were not treated more favorably, but had found ways to work more effectively with the staffing
they had.

S1 also determined that Complainant and his team had targeted employees for separation, and as
a result, the station was short-staffed and had a problem with the retention of its rural carriers. In
June of 2015, Complainant terminated an employee because the employee had engaged in a
hostile conduct on the work floor.
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Complainant later learned that S1 had brought the employee back to work in another office under
a Last Chance Agreement. S1 said he did so to avoid costly grievances and payouts. S1 believed
that Complainant, as the local manager, contributed to creating some of the staffing problems at
the Wyandotte West Station.

On April 3, 2015, Complainant learned that one of his clerk jobs had been abolished, but he had
not been informed in advance and not permitted to have any input on the decision. S1 stated that
this was an error and apologized to Complainant. He explained that this action was already in
motion when S1 stepped into his position. After S1 learned the larger city staffing process, he
averred that he fully engaged Complainant on the next set of unit staffing changes.

Claim 2 – Not Selected for Postmaster Position (Sex, Age and Retaliation)

The Agency posted a vacancy announcement during the period April 21 through May 6, 2015 for
a Postmaster, EAS-20, in De Soto Kansas. On May 6, 2015, Complainant applied for the
position, along with ten other applicants. The Manager of Mid-American District Office (“S-2”)
(female) was the selecting official and participated in the interviews of candidates. On May 14,
2015, Complainant was interviewed for the position. As a result of the interviews, three
candidates advanced for further consideration in the selection process. Complainant was not
among those three. However, the Agency did not select anyone for the position from that
posting.

Subsequently, on June 9, 2015, the eventual selectee (male, age 36) requested a voluntary
downgrade (from his EAS-22 position) to the EAS-20 position at issue. Agency policy permits
management to consider noncompetitive applications for voluntary lateral reassignments, or a
change to lower level, at any time that the applications are received.2 All the former candidates,
including Complainant, were interviewed again. Of the ten candidates interviewed, Complainant
was ranked seventh highest with a score of 24. The individual who had requested the voluntary
downgrade, received the highest score on the matrix with a score of 32. S2 averred that she chose
the selectee because he was deemed the best qualified candidate. S2 stated that she was unaware
of Complainant’s prior EEO activity and had not been involved in his prior EEO activity.

Claim 3 – Work Schedule Significantly Changed

Complainant’s main objection to his new schedule was he was required to work on Saturdays.
The Postmaster, Kansas City (“S3”) (male) acknowledged that it was his decision to change
Complainant’s work schedule. S3 had been named as a responsible management official in
Complainant’s prior EEO case. S3 stated that the reasons for the schedule change was to assist
the Rural Carrier Associates and to improve customer service of the unit.

2 The record evidence included a copy of ELM 353.22 that provides that employees who desire
non-competitive reassignment may nominate themselves by making a written request to the
selecting official.

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He stated that he had become concerned regarding the retention of rural carriers and Saturday
late mail delivery. S3 stated that Complainant was allowing one of his supervisors to be off on
Saturdays, which resulted in having only one supervisor from 5:00 a.m. to 7:00 p.m., which did
not provide the ability to correct any issues with that might arise. He said he addressed this issue
numerous times with Complainant to no avail. He added that Complainant was also sometimes
required to work the clerk window to the extent necessary for effective customer service. He
denied that Complainant’s prior EEO activity was a factor in his decisions.

S1 confirmed that generally, management officials were not required to work the mail daily, but
there was significant concern regarding the need to retain rural carriers through effective
management. This required Complainant to work extra duties. S1 testified that a female
comparator named by Complainant did not have circumstances similar to Complainant, because
the female comparator’s office does not have rural carriers.

Claim 4 – Complainant Informed He would be Delivering Mail

The management team received a complaint from the Rural Union and the Mid-America District
Labor Specialist regarding Complainant’s unit not following proper procedures, resulting in
payments of over $10,000 to settle union grievances. He added that Complainant’s unit still
failed to make the necessary adjustments. Therefore, Complainant was asked to deliver mail in
order to reduce the grievance payouts and the cost of high overtime.

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 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), concluding no discrimination or unlawful retaliation had
been established.

The instant appeal from Complainant followed.

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, 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”).
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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 Complainant to prevail, he
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, nondiscriminatory reason for its actions. See Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by
a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

Even assuming that Complainant established the elements of his prima facie sex, age and
retaliation claims, the Agency articulated a legitimate, non-discriminatory reason for its actions.
The record shows that his comparators also worked without adequate staffing, the selectee
received a higher score, and he was required to deliver mail and his work schedule was changed
to meet the customer service requirements and to reduce the cost of union grievance settlements.
There was no evidence that these actions were due to sex, age or his own ongoing protected EEO
activity. With the exception of S3, there is no evidence that the other responsible management
officials were aware of Complainant’s EEO activity prior to the disputed events. Regarding the
selection decision, the selectee had been serving in a higher graded position and it is very likely
that he was better qualified to assume the role of a position he had previously supervised. In
sum, Complainant did not establish, by a preponderance of the evidence, that he was the victim
of unlawful discrimination or retaliation.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Decision.

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.
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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.
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.
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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 4, 2018
Date