EEOC Appeal 2020000010

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dallas D.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 2020000010
Hearing No. 532-2019-00004X
Agency No. 1C-451-0040-18
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 August 5, 2019 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 Manual Clerk, PS-6, at the Agency’s
Columbus Processing & Distribution Center in Columbus, Ohio.
On May 28, 2019, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him based on race (African-American) and sex (male) when:
1. 	on January 23, 2018, Complainant was moved to another sorting case;
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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2. 	on February 28, 2018, Complainant was given a pre-disciplinary interview (PDI),
and subsequently, on March 8, 2018, he was issued a Letter of Warning (LOW);
and
3. 	on April 9, 2018, Complainant was denied an overtime opportunity.
After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of the right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. On August 7, 2019, after providing the parties an
opportunity to object, the AJ issued a decision by summary judgment in favor of the Agency. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. On appeal, Complainant asserts that the AJ confused the individuals
addressed in her decision, and therefore questions whether the AJ confused other matters in her
decision.
ANALYSIS AND FINDINGS
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. James v. U.S. Postal
Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We
have recognized that not every factual dispute qualifies as a genuine issue that will prevent
summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar.
31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). While
Complainant has alleged that the AJ mixed up some names in her summary judgment decision, he
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates a dispute of material fact necessitating a hearing. 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.

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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 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).
Regarding Claim 1, the responsible management official (RMO, race – black, sex – male) testified
that he did not recall if he asked Complainant to move to another case on the night of January 23,
2018. RMO stated that the assignment sheets, identifying where clerks are stationed, can change
due to the needs of the service. RMO testified that, according to the assignment sheet, Complainant
was assigned the “No Read Line” on Tuesday night/Wednesday, January 23/24, 2018. RMO stated
that, if he did ask Complainant to move, it was done because of the particular work that needed to
be done that night.
Regarding Claim 2, RMO testified that the February 28, 2018 PDI was to determine if discipline
was warranted. RMO stated that on February 28, 2018, Complainant left before the conclusion of
his two hours of overtime. RMO asked Complainant why he had departed early, to which
Complainant replied that he had a doctor’s appointment. Complainant does not dispute these facts.
RMO said he asked why Complainant did not advise him about the appointment prior to leaving
and Complainant responded, “I don’t have to tell you anything.” The resulting March 5, 2018
LOW stated that Complainant was, “given instructions to work [a] 10 hour shift and [he] left
unauthorized after working only 8.76hrs. on this day.” A second responsible management official
concurred on the LOW and cited to the National Agreement and ELM as the authorities for the
LOW.

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Regarding Clam 3, RMO testified that Complainant signed up on the Overtime Desired List
(OTDL) for the period of April 1 through June 30, 2018. RMO stated that Complainant was
provided overtime opportunities throughout this period. 	While RMO could not recall what
occurred on the particular date in question, he testified that any overtime worked by Complainant
was based on the day-by-day needs of the office.
Complainant has not provided any evidence to demonstrate that the Agency’s proffered
explanations for the events in question are pretext designed to mask discriminatory animus towards
Complainant based on his race and sex. Complainant’s mere assertions, without specific evidence,
that others are treated more favorably is not enough. 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 Agency’s actions were pretext for unlawful discrimination.
CONCLUSION
The Agency’s final order adopting the AJ’s decision by summary judgment concluding no
discrimination was established is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her
request and arguments to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013,
or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives

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it by mail within five days of the expiration of the applicable filing period. 	See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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 23, 2020
Date