EEOC Appeal 2019005212

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josh A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2019005212
Hearing No. 461-2018-00148X
Agency No. 1G-701-006-18
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 6, 2019
final order 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.
At the time of events giving rise to this complaint, Complainant worked as a Supervisor of
Distribution (SDO) Level 17 at the Agency’s New Orleans Processing and Distribution Center
(NO P&DC) in New Orleans, Louisiana.
On February 12, 2018, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and in reprisal for
prior protected EEO activity when:
1. On September 20, 2017, he was issued a letter of warning; and
2. On February 13, 2018, he was subjected to an investigation.
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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With respect to claim 1, the Agency asserted that on July 19, 2017, and during the first week of
August 2017, the Manager of Distribution Operations (MDO) reminded Complainant that it was
Complainant’s responsibility to ensure that all mail volume in his assigned unit was cleared and
dispatched to the downstream operations before the end of his Tour. The Agency said that on
August 17, 2017, committed priority mail was found in Complainant’s assigned unit, not
dispatched to the downstream operations, after Complainant ended his Tour of duty.
According to Complainant, on August 17, 2017, he received an emergency phone call and
instructed a full time Mail Handler, a Black female, to finish moving the mail because he had to
leave. Later that morning, the MDO sent Complainant an email informing him that he had been
scheduled for an investigation. During the investigation, Complainant stated he proffered a
witness statement explaining why there was mail left which according to Complainant the MDO
disregarded. On September 20, 2017, the MDO issued a Letter of Warning (LOW) to Complainant
for failure to follow instructions because priority mail had been left in his unit and he had failed to
ensure the operation’s clearance of all downstream mail volume for his assigned unit. Complainant
alleged that his sex, not his race, motivated the LOW because five female supervisors were treated
more favorably.
The record reveals that four of the five female supervisors Complainant identified received LOWs
for failing to follow instructions or for failing to perform certain duties and one had not committed
any infraction or received a discipline. The MDO stated that he conducted an investigative
interview with Complainant regarding claim 1. He noted that Complainant suggested he speak
with an employee in Complainant’s operation. The MDO stated the ultimate responsibility of the
operational clearance was Complainant’s responsibility alone and not an employee within his
charge. Moreover, the MDO stated he was not aware of an incident involving four of the named
comparators failing to ensure the operation’s clearance of all downstream mail volume for their
assigned units. The MDO stated one of the named comparators was issued a LOW for failing to
clear her operation. Further, the MDO identified a female second-level supervisor who committed
an infraction similar to Complainant’s and she too received a LOW.
Regarding claim 2, the Agency stated that on December 21, 2017, Complainant was notified that
the Senior Plant Manager (“SPM”) directed the National Distribution Center (“NDC”) to process
its standard parcel volume (mail that was processed by Complainant’s assigned unit) on the dock
outside the culling unit, rather than inside the culling unit. On February 13, 2018, the MDO
conducted an investigative interview with Complainant regarding Complainant’s failure to process
NDC packages in accordance with the directive handed down by SPM. Complainant identified
three female supervisors (all of whom had engaged in prior EEO activity) as comparators who had
been treated more favorably by not being subjected to an investigation even though the MDO said
he had no knowledge that any of them had failed to follow directives.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ).

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Complainant timely requested a hearing. The Agency submitted a motion for a decision without a
hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency.
The AJ found that Complainant failed to establish a prima facie case of discrimination or retaliation
because he failed to identify a similarly-situated person outside his protected classes who was
treated more favorably under circumstances relating to the failure to ensure the operation's
clearance of all downstream mail volume for his assigned unit or being subject to an investigation
for the failure to process NDC packages in accordance with the directive handed down by the
SPM. The AJ also found that even if Complainant had established a prima facie case, the Agency
provided legitimate, non-discriminatory non-retaliatory reasons for its actions which Complainant
failed to refute or prove were false or pretext for unlawful discrimination.
The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.
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).
In order 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 has 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.
Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.
Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

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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
May 13, 2020
Date