EEOC Appeal 2020000099

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harry E.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000099
Hearing No. 410-2017-00342X
Agency No. 1K-302-0083-16
DECISION
On August 17, 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
July 12, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer
Operator, PS-8, at the Agency’s Atlanta Processing and Distribution Center facility in Atlanta,
Georgia.
On 	December 	5, 	2016, 	Complainant 	filed 	an 	EEO 	complaint 	alleging that 	the 	Agency
discriminated against him on the bases of race (Caucasian) and color2 when:
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.
2 Complainant indicated his color was “European” on his formal complaint and indicated it was
“Caucasian” during the investigation.

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1. 	On August 6, 2016, after reporting for duty as scheduled, Complainant was not
permitted to run his own route; and
2. 	On August 26, 2016, Complainant was issued a Letter of Warning, dated August
24, 2016, for failure to follow instructions.
The Agency accepted the complaint and conducted an investigation which produced the following
evidence.
Complainant 	attested 	that, 	on 	August 	1, 	2016, 	a 	Supervisor, 	Transportation 	Operations
(Supervisor1) agreed that, if Complainant worked on August 6, 2016, he would be allowed to run
his 	bid 	route. 	Complainant 	attested 	that 	another 	Supervisor, 	Transportation 	Operations
(Supervisor2) was present in the meeting and commented that Complainant only wanted to run his
bid route because it was easier.
On August 6, 2016, Complainant was not scheduled to work his bid route. Complainant attested
that, when he reported for work on that day, he informed another Supervisor, Transportation
Operations (Supervisor2) that the schedule was wrong and reminded her that Supervisor1 had
agreed to allow him to run his bid route. He attested that Supervisor2 yelled at him and informed
him that a co-worker (CW) was going to do Complainant’s bid route. Complainant attested that,
following this exchange with Supervisor2, he left the facility.
Complainant attested that he believed his race and color were factors because CW is Black and
has less seniority.
Supervisor1 attested that he made the weekly schedule and assigned overtime, but he was not at
work on August 6, 2016 when the events at issue occurred and Supervisor2 made the decision that
Complainant would not work his bid route. Supervisor1 explained that Complainant was on off-
day overtime and was not scheduled to run his own route. Supervisor1 attested that he put
Complainant on a different route because, in the past, he wanted a tractor with air conditioning, so
he scheduled him in one. Supervisor1 explained that there is no rule stating an employee who
works on their day off is guaranteed their route. He also attested that he makes the schedule per
the needs of the Agency.
Supervisor2 attested that she did not tell Complainant that he could not run his bid route on August
6, 2016. She attested that CW was scheduled to run that route. She explained that she only makes
the daily schedule. She further attested that Complainant told her that if he was not able to run his
bid route, then he was going home. Supervisor2 denied knowledge of the conversation during
which Supervisor1 allegedly told Complainant that he could work his route on August 6, 2016 and
denied yelling at Complainant.

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Supervisor1 attested that he discussed Complainant’s failure to follow instructions with the
Manager, Transportation Network (Manager), but it was his decision as to what discipline to issue.
Supervisor1 attested that the basis for the discipline was that an employee is not allowed to tell
management that they are going home if they cannot run their route. On August 9, 2016, he
conducted a pre-disciplinary interview.
The record contains a Letter of Warning (LOW), dated August 24, 2016, from Supervisor1 to
Complainant. It provides that Complainant was being issued the LOW for failure to follow
instructions. It specifically notes that, on August 6, 2016, Complainant was scheduled to work
overtime on run 130, and, after reporting to work and being told by Supervisor2 that he was
assigned to work run 130, Complainant told Supervisor2 that Supervisor1 said that he could work
run 173. The LOW explains that, since Complainant was on off-day overtime, he was not
guaranteed his run. It further explains that Supervisor1 was not the supervisor on duty and the
agreement between Complainant and Supervisor1 was verbal, so he must follow the instructions
of the supervisor on duty. The LOW states that Complainant failed to follow instructions when he
did not take the run assigned to him by his immediate supervisor, causing mail delays at the facility.
The LOW references the applicable Agency regulations.
At the conclusion of 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). 	Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 24, 2018,
motion for a decision without a hearing and issued a decision by summary judgment in favor of
the Agency on June 20, 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. On appeal, Complainant submits a brief, referencing his arguments
contesting the Agency’s final decision and the AJ’s Order Entering Summary Judgment and Final
Judgment. In response, the Agency argues that Complainant cannot establish pretext, as he admits
he committed the acts for which he was disciplined. It also asserts that Complainant failed to raise
a retaliation claim at the initial conference with the AJ or before the end of discovery and, even if
he had, failed to allege facts that establish unlawful retaliation.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). 	In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249.

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The evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision
without holding a hearing is not appropriate.
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, she 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.
Complainant has alleged that the Agency treated him disparately in not allowing him to run his
bid route on August 6, 2016 and subsequently issuing a LOW, disciplining him for failing to follow
instructions. A claim of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S.
at 802; Furnco Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502
(1993).
Even if we assume that Complainant established a prima facie case of discrimination, his claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that Complainant was on off-duty overtime and was not
guaranteed his bid route; Complainant was scheduled to work a different route because, in the past,
he wanted a tractor with air conditioning, so he was scheduled for such a tractor; and schedules
were made per the needs of the Agency. We recognize Complainant’s contention that Supervisor1
had verbally agreed that he could work his bid route that day, but this was not reflected on the
schedule and Supervisor1 was not at the facility at that time. The Agency further explained that
Complainant was disciplined for failing to follow instructions because he did not take the run
assigned to him, causing mail delays at the facility. We note that Complainant does not deny that
he left the Agency upon learning that he could not work his desired route.

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Therefore, we find that, although Complainant has alleged discrimination, he has not established
by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by
the Agency were a pretext for unlawful discrimination or motivated by some unlawful
discriminatory animus with respect to these claims.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.
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 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.

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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
October 26, 2020
Date