EEOC Appeal 2020001206

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Heriberto P.,1
Complainant,
v.
Louis Dejoy,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020001206
Agency No. 4E-500-0006-19
DECISION
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 final decision concerning
his equal employment opportunity (EEO) 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, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Letter Carrier
at the Agency’s Post Office in New Hampton, Iowa. According to Complainant, his First Level
Supervisor (S1) and the Officer-in-Charge (OIC) delayed the posting of Position No. 95554163
for Rural Route 2, which was not posted until October 11, 2018. Report of Investigation (ROI),
at 97. Complainant stated that all bidding opportunities should be posted in the office, and he
believed the position should have been posted on September 24, 2018. Id. Complainant was
nevertheless ultimately selected for Position No. 95554163 on November 24, 2018, and
thereafter began working Route 2. Id. at 98.
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 October 22, 2018, management changed the posting for Position No. 95554163 from a 44K
route rate to a 40H route rate. Id. at 99-100. Complainant asserted that the change of Route 2
from a 44K route rate to a 40H route rate resulted in him losing wages, mileage, bathroom
breaks, as well as loss of days off on Saturdays. Id. at 100. Also, around October 26, 2018, the
OIC was reportedly not providing Complainant the required case time to relabel and additional
equipment authorized for his route. Complainant said that management's stated reason for not
providing the required case time and equipment was "that's all you get." Id. at 102-104.
On 	February 21, 	2019, 	Complainant 	filed 	an 	EEO 	complaint 	alleging that 	the 	Agency
discriminated against him on the basis of reprisal for prior protected EEO activity when:
1. 	On March 9, 2018, he felt threatened by his Postmaster and filed a grievance
which was settled on March 23, 20182;
2. 	On October 11, 2018, he became aware that management delayed the posting of
Position No. 95554163, thus delaying his appointment as a full-time Rural Letter
Carrier;
3. 	On October 22, 2018, management manually corrected the evaluation on the
posting of Position No. 95554163 from a K44 route to a H40 route resulting in
him being paid at the H40 rate; and
4. 	On October 26, 2018, management did not provide him with sufficient space,
time, or equipment to re-label his case.
Following 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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
The Agency found that Complainant did not establish a prima facie case of discrimination based
on reprisal. In so finding, the Agency noted that both S1 and the OIC were not aware of
Complainant’s prior protected EEO activity, and they were only made aware of the instant
complaint in November 2018 and July 2019, respectively. The Agency observed, moreover, that
Complainant admitted that he never believed that his EEO activity was a factor in the Agency’s
actions. The Agency further noted that although Complainant claimed that he engaged in
opposition activity, what he offered as evidence of that activity did not constitute opposition
activity. The Agency specifically observed that Complainant did not claim to have opposed
2 On April 16, 2019, the Agency issued a partial acceptance/dismissal of the formal complaint
and dismissed claim 1. Complainant does not challenge the Agency's dismissal on appeal.
Therefore, we shall not address claim 1 in this decision.

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unlawful discrimination prohibited by any anti-discrimination statute. The Agency nevertheless
assumed, without finding, that Complainant established a prima facie case of reprisal, but
determined that it articulated legitimate, nondiscriminatory reasons for its actions, which
Complainant did not establish were pretextual. The Agency further found that its actions were
not severe or pervasive enough to rise to the level of a hostile work environment.
CONTENTIONS ON APPEAL
Neither party has raised new contentions on appeal.
STANDARD OF REVIEW
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”).
ANALYSIS AND FINDINGS
Disparate Treatment
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, non-discriminatory reason for its actions. See Texas Department 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); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).
Here, we find assuming, arguendo, Complainant established a prima facie case of discrimination
based on reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions
with regard to claims 2, 3, and 4.

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Specifically, regarding claim 2, the OIC explained that she was the management official
responsible for taking action to notify eligible employees of the opening for bid of Position No.
95554163. According to the OIC, the delay occurred due to a miscommunication between the
Hawkeye District Office and the New Hampton Post Office. ROI, at 123. 	As for claim 3, both
S1 and the OIC explained that when Route 2 previously became vacant, a decision had been
made to implement the Delivery Unit Optimization program. Id. at 144-146. They specifically
stated that a route held by a regular Rural Letter Carrier was moved from the Alta Vista Post
Office to the New Hampton Post Office, causing that employee to lose miles and triggered the
obligation to make that Carrier "whole.” Id. at 127. They attested that Route 2’s posting was
amended to show its correct evaluation, as the previous Rural Letter Carrier no longer was
assigned to Route 2. Id. Regarding claim 4, both the OIC and S1 asserted that Complainant had
been provided the casing equipment required by the applicable Standard Operating Procedure
and that there have not been any safety problems or productivity issues. Id. at 147-148.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons
were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not
established 	that 	the 	Agency’s 	reasons 	were 	pretextual 	based 	on 	reprisal. 	We 	note 	that
Complainant claimed that his EEO activity consisted of opposition activity on various dates, but
we find the record reflects that Complainant did not oppose an alleged discriminatory practice
under a protected EEO statute with respect to these alleged dates. Moreover, in response to the
Investigator’s questions about why he believed that his EEO activity was a factor in connection
with his claims, Complainant answered, "Never said it was.” ROI, at 99. We therefore find that
Complainant did not alleged retaliation for either participation in, or opposition to, any protected
EEO statute. Notwithstanding, we find no evidence in this case that the Agency was motivated
by retaliatory animus with respect to any of its alleged actions.
Hostile Work Environment
With respect to any contention by Complainant that he was subjected to a hostile work
environment due to the actions of Agency management, we find that under the standards set forth
in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) this claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sep. 21, 2000).
CONCLUSION
We AFFIRM the final agency decision 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
September 11, 2020
Date