EEOC Appeal 2020000793

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Domingo M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 2020000793
Hearing No. 480-2018-00650X
Agency No. 4F-900-0321-17
DECISION
On October 12, 2019, 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
September 26, 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 for the Agency as a Carrier Technician, Q-02, in
Bellflower, California.
On October 17, 2017, Complainant filed a formal EEO complaint alleging that the Agency
unlawfully retaliated against him for engaging in prior protected EEO activity (Agency No. 4F-
900-0322-15, filed February 2017) when:
1. 	On June 5, 2017, June 10, 2017, June 30, 2017, July 1, 2017, July 10, 2017 and
August 3, 2017, Complainant was denied overtime;
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 July 21, 2017, Complainant requested sick leave, but the Agency charged him
annual leave for his absence;
3. 	On September 12, 2017, Complainant was issued a Letter of Warning;
4. 	On November 22, 2017, Complainant was singled out when he was instructed to
remove personal items from his case;
5. 	On November 29, 2017, Complainant’s Postmaster verbally abused him and
threatened to walk his route with him every day;
6. 	On December 7 and December 12, 2017, Complainant was not provided with the
results of route observations performed on him;
7. 	On or about December 1, 2017, Complainant was instructed to supply acceptable
medical documentation for the six hours of sick leave he requested; and
8. 	On January 16, 2018, Complainant was issued a Letter of Warning.
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 Equal Employment Opportunity Commission
Administrative Judge (AJ). 	Complainant timely requested a hearing. 	Over Complainant's
objections, the AJ assigned to the case granted the Agency’s February 2, 2019 motion for a
decision without a hearing and issued a decision by summary judgment in favor of the Agency on
September 24, 2019. 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.
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.

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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. While Complainant
has, in a very general sense, asserted that facts are in dispute, he has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that indicates
such a dispute. 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.
Disparate Treatment
Generally, claims of disparate treatment such as this are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd. 545 F.2d 222
(1st Cir. 1976). 	For a 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to the
complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its
actions was a pretext for discrimination. At all times, the complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 143 (2000); St. Mary's Honor Center v. Hicks, U.S. 502, 519 (1993); U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
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).
Complainant bases his retaliation claim on his filing of a prior EEO complaint in February 2017.
While he concedes that none of the management officials involved in the instant complaint were
part of that prior complaint, he indicated that he told them about it.

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Here, our independent review of the evidence of record supports the AJ’s conclusion that
Complainant failed to raise a genuine issue of material fact as to whether the Agency’s articulated
legitimate, non-discriminatory reasons were pretext.
With respect to claim 1, the Agency established that Complainant did in fact work overtime on
four of the six instances at issue. Complainant, in fact, acknowledges this fact. Complainant has
failed to provide evidence that other similarly situated employees who did not have prior EEO
activity were treated more favorably than he was with regard to overtime opportunities. In sum,
Complainant has failed to provide evidence linking the alleged denial of overtime to his EEO
activity.
With regard to the two letters of warning (September 2017 and January 2018), the responsible
management officials testified that the September warning was provided because Complainant had
multiple unscheduled absences and the warning was issued pursuant to the attendance policy.
Similarly, the January warning was issued for further failures to be regular in attendance. Beyond
his bare assertions, there is no evidence to support a finding that Complainant’s prior EEO
complaint played any role in the issuance of the letters or that any other similarly situated
comparators were treated more favorably.
Harassment
The remaining allegations in the complaint concern allegations of retaliatory harassment that did
not result in a concrete personnel action. The alleged responsible management officials deny the
incidents occurred as alleged by Complainant or offer legitimate explanations for their actions.
To prove his claim of harassment, Complainant 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 his prior EEO complaint. Only if Complainant establishes both of
those elements – hostility and unlawful motive – will the question of Agency liability present itself.
Here, Complainant’s claim of harassment is precluded based on our findings that the AJ correctly
determined that Complainant failed to produce evidence beyond his vague assertions that
established that any of the disputed actions taken by the Agency were motivated by retaliatory
animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final order adopting 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
September 10, 2020
Date