Rashad W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Apr 17, 2019

2019000931 (E.E.O.C. Apr. 17, 2019)

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

Rashad W.,1
Complainant,

v.

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

Appeal No. 2019000931

Hearing No. 450-2013-00142X

Agency No. 1G-754-0047-14

DECISION

On October 30, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 26, 2018 final action 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., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Motor Vehicle Operator at the Agency’s
Dallas Processing and Distribution Center (P&DC) in Dallas, Texas.

On April 15, 2014, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on disability and in reprisal for prior EEO activity
when, since March 5, 2014 and continuing, management made changes to his route.

After an investigation,2 Complainant was provided a copy of the investigative file and requested
a hearing before an EEOC Administrative Judge (AJ).

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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On September 13, 2018, the AJ issued a decision by summary judgment in favor of the Agency,
concluding no discrimination was established. The Agency issued its final action, adopting the
AJ’s decision.3

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

2 The record reflects that on April 30, 2014, the Agency initially dismissed the complaint for
failure to state a claim. On appeal, the Commission reversed the Agency’s dismissal and
remanded the matter to the Agency for further processing. EEOC Appeal No. 0120142196 (April
1, 2016). Following the Commission’s decision, the Agency processed the remanded claims in
accordance with 29 C.F.R. § 1614.108, which is now the subject of the instant appeal.

3 Complainant identified his disabilities as disc problems, hypertension and plantar fasciitis. For
purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.

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For complainant to prevail, she must first establish a prima facie 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 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).

Complainant is a Motor Vehicle Operator at the Agency’s Dallas P&DC. Complainant’s first-
level supervisor was the Supervisor, Transportation, and his second-level supervisor was the
Manager, Postal Vehicle Services. Both were aware of Complainant’s prior protected activity.

During the relevant period, Complainant was assigned to Tour One and drives a 7-Ton Truck in
the performance of his duties. Complainant’s bid position is Run Number DX-030, which
consists of two dispatches. The remainder of his run is advance time, to be used for the needs of
the service. Complainant does not drive an 11-Ton Truck because he said to do so would violate
his medical restrictions. The 7 and 11-Ton Trucks are referred to as “bobtail” trucks.

There are 16 Motor Vehicle Operators (13 are African-American and 3 are Caucasian) on Tour 1
who drove the bobtail trucks at the time. All Motor Vehicle Operators drive both 7 and 11-Ton
Trucks except for Complainant and a named African-American Motor Vehicle Operator.

Complainant asserted that his starting time was changed on the following dates: September 27,
2011, from 1:00 a.m. to 3:00 a.m.; June 19, 2012, from 3:00 a.m. to 2:30 a.m.; and July 7, 2012,
from 2:30 a.m. to 2:00 a.m.

On July 13, 2011, the Manager, Postal Vehicle Services (Manager) issued run changes for 13
runs, including the runs of Complainant, to be effective July 14, 2011. Complainant’s hours of
operation were revised to 2:30 a.m. Complainant’s time and attendance reports reflect that he
continued to start work at 12:30 a.m. from July 11, 2011, through September 26, 2011.

Oh September 22, 2011, the Manager issued a routing slip making run changes to 48 runs,
including the runs of the Complainant. Complainant’s hours were revised to 3:00 a.m.

Complainant’s schedule was changed at his request on June 19, 2012, to allow him more time
from when he clocked in to load and depart to the dock. On July 7, 2012, Complainant’s
schedule was again changed at his request, to start at 2:30 a.m., to allow him time to complete his
vehicle inspection prior to departing for the dock. Complainant’s time records reflect that from
June 19, 2012 through July 6, 2012, he started work at 2:30 a.m. and that beginning July 9, 2012,
he generally started working at 2:00 a.m. At that time, the Manager made numerous reporting
time changes for other Motor Vehicle Operators.

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Complainant’s normal work schedule was Monday through Friday. On August 30, 2011, the
holiday schedule was posted for Labor Day. Complainant was scheduled to work on the Saturday
before the holiday, September 3, 2011. Complainant failed to report to work on September 3,
2011 and was placed in a Leave Without Pay (LWOP) status. The Employee and Labor
Relations Manual (ELM), states that an employee who is scheduled to work on a holiday or on a
designated holiday, but does not work, is placed in a LWOP status and does not receive holiday
leave pay. Complainant filed a grievance on this matter and was paid holiday pay.

Complainant claimed that his run time was changed 14 times on eleven dates. In his response to
the Agency’s Motion, Complainant alleged that it was changed 17 times, and that no other 7-
Ton, disabled driver’s run change was affected as many times. The record reflects that on June
24, 2011, the 20 runs were changed; on July 7, 2011, 21 runs were changed; on July 14, 2011, 13
runs were changed; on July 19, 2011, 17 runs were changed; and on September 27, 2011, 48 runs
were changed.

On May 8, 2012, Complainant started working at 3:00 a.m., the starting time he had been
working since September 27, 2011. He continued working a start time of 3:00 a.m. until June
19, 2012. On August 8, 2012, Complainant started work at approximately 12:30 a.m., his normal
reporting time for that period of time.

The record reflects that March 17, 2012, was a non-scheduled day for Complainant. He alleged
he requested overtime on that day by being on the overtime desired list. Specifically,
Complainant claimed that the former Supervisor, Transportation (former supervisor) told him
and his union representative that Complainant turned it down.4 The overtime list for March 17,
2012, reflects that the former supervisor indicated that both Complainant and a named Caucasian
Motor Vehicle Operator (Employee 1) turned down overtime on that day. A named African-
American Motor Vehicle Operator (Employee 2) worked overtime on that day. In his response
to the Agency’s Motion, Complainant claimed he left work early on March 16, 2012, due to
illness and could not have been asked to work. The record reflects that Complainant worked
more overtime than Employee 1 and Employee 2 in the first quarter of 2012, and that he was
asked to work non-scheduled day overtime on January 6 and 27, 2012, February 3 and 8, 2012,
and March 23 and 30, 2012, but declined the opportunities to do so.

Complainant asserted that when his union representative was speaking with the former
supervisor about Complainant’s overtime, the former supervisor made a comment that
Complainant could go forward and file a grievance, and “he was going to get him [Complainant]
and that he better watch himself.” The former supervisor stated that if Complainant was missed
for overtime, a make-up day would be granted.

4 The record reflects that during the relevant period, the former supervisor retired from Agency
employment.
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Further, Complainant alleged that on May 31, 2012, when he called into the Unscheduled Leave
Request System requesting 8 hours of sick leave, his request was flagged and he was required to
bring in documentation in support of his absence. He alleged that he already had documentation
on record through his Family Medical Leave Act (FMLA) case. When Complainant returned to
work the following day and provided the FMLA case number, his leave was not denied.

Complainant alleged that on June 14, 2012, he requested 8 hours of FMLA sick leave on the
Unscheduled Leave Request System, and that he was required by the system to bring in
documentation for his absence. When Complainant returned to work the following day, his
request for the FMLA sick leave was granted. The former supervisor did not flag Complainant
regarding FMLA leave.

Complainant asserted that on August 27, 2012 and September 17-19, 2012, he was bypassed for
overtime. However, the records indicate that Complainant was on annual leave on August 27,
2012. Complainant worked 8 hours on August 29, 2012 and September 17-19, 2012.

The AJ noted that Employee 2 was on higher level and worked overtime on August 29, 2012 and
September 17-19, 2012. His tour of duty ended at 8:30 a.m., and he worked until approximately
10:30 a.m. on those dates. Complainant’s tour of duty ended at 10:30 a.m. In the 4th quarter of
the fiscal year, Complainant worked 96.38 hours of overtime versus 70.62 hours of overtime for
Employee 1, 62.58 hours of overtime for Employee 2, and 83.95 hours for a named African-
American Motor Vehicle Operator (Employee 3), all of whom were on the overtime desired list.

Moreover, Complainant alleged that the former supervisor told his union representative that his
grievances (referring to the union representative’s) were frivolous. He further stated that no
remarks were made with respect to him or his grievances.

Complainant alleged that since March 5, 2014 and continuing to date to be specified,
management made changes to his route.

The Supervisor of Transportation Operations, also Complainant’s first-level supervisor, stated
that upon the implementation of the new Occupational Window Change (OWC) program,
Complainant was made aware that schedules will be changed for the needs of the service.
Specifically, the supervisor explained that in October 2014, the Agency implemented a program
called Occupational Window Change (OWC) which required the revamping of how mail is
processed. The supervisor stated, “as support to operations, PVS schedules were required to
change. I was involved in this process but schedules were not implemented prior to December
2014.

The supervisor stated that other than the OWC implementation, “when a driver’s start time and
facility to facility is changed, it stems from… a Headquarters required Zero Base review that
determines of the changes are made for the need of the service and if a Supervisor does a route
check to ensure that the route is timely and provides the pick-ups or deliveries as needed.
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If there [are] hinderances such as construction, requests for trucks not to utilize the route or
facilities requiring pick up or delivery changes, then driver’s start time and facility to facility
points may be changed.”

The supervisor stated that she did not discriminate against Complainant based on his disability
and prior protected activity. With respect to Complainant’s disability, the supervisor stated that
she did not receive any medical documentation in reference to Complainant’s medical condition
prior to March 2014. The supervisor noted, however, Complainant “could only drive a 7-ton
vehicle.” The supervisor noted that Complainant did not inform her that the changes in his start
time and his facility to facility route prevented him “from maintaining his scheduled doctor’s
appointments.”

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination on any basis alleged.

To the extent that Complainant is also alleging he was subjected to discriminatory harassment as
a result of the changing of his route, he must establish that he was subjected to conduct that was
either so severe or so pervasive that a “reasonable person” in Complainant’s position would have
found the conduct to be hostile or abusive. Complainant must also prove that the conduct was
taken because of a protected basis – in this case, disability and/or retaliatory animus. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, the AJ found that the evidence of record did not establish
that Complainant was subjected to harassment based on disability and prior protected activity.
We determine that the AJ’s analysis that Complainant failed to prove his harassment claim was
also proper.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.

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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.
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.

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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

April 17, 2019
Date