EEOC Appeal 2020000237

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Garth N.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 2020000237
Agency No. 4C-080-0103-18
DECISION
On September 12, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 23, 2019 final decision 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 City Carrier at the Agency’s Lancaster Post
Office in Wilmington, Delaware.
On July 11, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American), national origin (African-
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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American), color (black), sex (male), religion (Catholic),2 disability,3 and in reprisal for prior EEO
activity (Agency No. 4C-080-0022-18) when:
1. 	on March 12, 2018, he was issued a Notice of Removal; and
2. 	on December 10, 2018, he was put on Emergency Placement in an Off-Duty Status.4
After the investigation of the formal complaint, the Agency issued the instant final decision on
August 23, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
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 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).
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).
2 The record reflects that during the investigation, Complainant removed religion as a basis.
3 	Complainant 	identified 	his 	disabilities 	as 	rib 	cage 	dysfunction, 	thoracic 	back 	pain,
Scapulothoracic Syndrome, abnormal posture, myofascial pain, and cervical disc disorder. For
purposes of this analysis, we assume, without so finding, that Complainant was an individual with
a disability.
4 The record reflects that claim 2 was later amended to the instant formal complaint.

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Here, we find that the responsible Agency officials articulated legitimate, non-discriminatory
reasons for the disputed actions as detailed below.
On April 7, 2017, Complainant’s condition was first diagnosed when he suffered an on-the-job
injury. He attested that he was unable to perform his duties of Delivery Operations more than 4
hours a day; cannot lift more than 30 pounds or 10 pounds continuously more than 4 hours a day;
can perform pulling/pushing no more than 50 pounds; and can bend/twist no more than 4 hours a
day.
In May 2017, Complainant’s Office of Workers’ Compensation Programs (OWCP) claim was
accepted for the following conditions: unspecified sprain of left shoulder joint; sprain of ribs;
sprain of muscle and tendon of back wall of thorax; and sprain of ligaments of cervical spine.
According to the Department of Labor Form CA-17 “Duty Status Report” dated October 24, 2017
indicated that Complainant was able to continuous lift 10 pounds and intermittently 30 pounds 4
hours/day; sit 8 hours/day; stand 8 hours/day; walk 8 hours/day; climb 8 hours/day; kneel 8
hours/day; bending/stooping 4 hours/day; twisting 4 hours/day; pulling/pushing 10 pounds
continuous 	and 	30 	pounds 	intermittent 	4 	hours/day; 	simply 	grasping 	8 	hours/day; 	fine
manipulation 8 hours/day; reaching above shoulder continuous 4 hours/day; driving a vehicle 8
hours/day; operating machinery 8 hours/day; temperature extremes 8 hours/day; high humidity 8
hours/day; chemical solvents, etc. 8 hours/day; fumes/dust 8 hours/day; and noise 8 hours/day.
Regarding claim 1, Complainant asserted that on March 12, 2018, he was issued a Notice of
Removal.
The Manager, Customer Service (Caucasian, white male, unknown national origin) stated that he
was the deciding official to issue Complainant the Notice of Removal dated March 12, 2018, for
Unsatisfactory Attendance. He stated that prior to issuing Complainant the Notice of Removal, he
conducted a Pre-Disciplinary Interview (PDI) with Complainant in the presence of the union
steward on February 10 and 21, 2018. The Manager noted when Complainant was asked to explain
his absences, he stated that his car was totaled, had doctors’ appointments and for several of the
dates “didn’t recall why [he was] absent.”
The Manager determined that Complainant violated Sections 511.43 “Employee Responsibilities”
and 665.41 “Requirement of Regular Attendance” of the Employee and Labor Relations Manual.
The Manager also noted that he considered Complainant’s 14-day suspension in February for
unsatisfactory job performance.
The record contains a copy of the March 12, 1018 Notice of Removal in which he placed
Complainant on notice that he would be removed from Agency employment no sooner than thirty
days from the date of his receipt of the letter. The Manager determined that Complainant failed to
be regular in attendance on the following dates:

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January 16-18, 2018 	20.38 hours of Unscheduled Sick Leave
January 19, 2018 	8.00 hours of Unscheduled Annual Leave
January 25, 2018 	8 hours of Unscheduled Emergency Annual Leave
January 31, 2018 	8 hours of Unscheduled Sick Leave
February 2, 2018 	8 hours of Unscheduled Emergency Annual Leave
February 3, 2018 	2 hours of Unscheduled Part-day Leave Without Pay
February 3, 2018 	6 hours of Unscheduled Emergency Annual Leave
February 8, 2018 	8 hours of Unscheduled Sick Leave
February 12, 2018 	4 hours of Unscheduled Emergency Annual Leave
February 13-17, 2018 	32 hours of Unscheduled Annual Leave
February 20, 2018 	8 hours of Unscheduled Sick Leave
The record reflects that as a result of the grievance, Complainant was reinstated to his City Carrier
position without backpay.
Regarding claim 2, Complainant alleged that on December 10, 2018, he was put on Emergency
Placement in an Off-Duty Status.
The Postmaster (Caucasian white male, American) stated that on December 10, 2018, Complainant
was placed on Emergency Placement in an Off- Duty Status for threatening the Manager and
“us[ing] vulgar language in several conversations.”
The Manager explained that during the relevant period Complainant made telephone calls to him
which included disparaging comments about him and his family and to his knowledge, this was
the reason Complainant was placed on Emergency Placement.
With regard to the two claims, beyond his bare assertions, Complainant failed to produce any
evidence that the proffered reasons provided by management witnesses for the disputed actions
were a pretext masking discriminatory or retaliatory animus. 	We note again that Complainant
provided no arguments on appeal.
Finally, to the extent that Complainant also offered these incidents in support of a discriminatory
harassment claim, he again has simply provided no evidence to support his claim that his treatment
was the result of his race, national origin, sex, color, disability or retaliatory animus. A case of
harassment is precluded based on our findings that Complainant failed to establish that any of the
actions taken by the Agency were motivated by his protected bases. 	See Oakley v. U.S. Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
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.

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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
August 20, 2020
Date