Andres M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

0120181837 (E.E.O.C. Aug. 13, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Andres M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120181837

Hearing No. 410-2016-00078X

Agency No. 1K-304-0017-15

DECISION

On May 11, 2018, 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
April 5, 2018, 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the reasons which follow, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are: (1) whether the grant of summary judgment in favor of the Agency was
proper; and (2) whether Complainant has established by a preponderance of the evidence that it
was unlawful discrimination that motivated the Agency to remove him from employment?

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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BACKGROUND

At the time giving rise to this complaint, Complainant worked as a Mail Handler/Equipment
Operator at the Agency’s Network Distribution Center (NDC) in Atlanta, Georgia. He was a 30-
year employee. Complainant and another employee (E1) were involved in an altercation at work
on February 28, 2015. The incident was investigated by the Agency’s Inspection Service which
conducted investigative interviews of Complainant, E1, and other employees identified as
allegedly having witnessed the event. By Notice of Removal (Notice), dated April 14, 2015,
Complainant was notified that he would be removed from employment on May 20, 2015, for
misconduct. Complainant and E1 were removed from their employment. The Notice was issued
by Complainant’s supervisor (age 60) and concurred in by the Manager, Maintenance Operations
Support (age 55). It described the incident that had occurred, noting that Complainant had not
denied the altercation had occurred. The Notice also revealed that Complainant was aware of the
Agency’s zero tolerance policy and informed him that he was in violation of provisions of the
Employee and Labor Relations Manual and federal regulations concerning conduct on Agency
policy and Postal Service Policy Statement on Acts and Threats of Violence in the Workplace, all
of which were set forth in the Notice.

On August 13, 2015, Complainant filed a discrimination complaint alleging that the Agency
discriminated against him on the bases of age (53) and reprisal for prior protected EEO activity
when on April 20, 2015, the Agency issued him a notice of removal based on unacceptable
conduct.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and a notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, which he
filed on December 8, 2016, the AJ assigned to the case granted the Agency’s November 23, 2016,
motion for summary judgment and issued a decision without a hearing on March 12, 2018. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency had subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant first argues that the AJ should not have considered the Agency’s motion for summary
judgment because the Agency failed to comply with the AJ’s scheduling order. He also argues
that summary judgment was not appropriate because the AJ improperly weighed evidence and
failed to construe the evidence in a light most favorable to him. Complainant contends further that
his removal was based on falsities; that he was treated differently from comparators; and that the
AJ failed to consider the Agency’s failure to administer its zero tolerance for workplace violence.

Complainant also asserts that the AJ committed errors when he failed to find that the Agency’s
reasons for removing him were pretextual. In this regard, he points out that the alleged
discriminating officials falsely denied knowledge of his prior protected activity and lied about why
Complainant was removed; that his removal occurred within a few weeks after he engaged in
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protected activity thereby establishing a discriminatory link; that the Agency changed its reason
for his removal and it was factually false; and that the AJ made factual errors concerning the
altercation, including that Complainant assaulted E1. Complainant also contends that as further
evidence of pretext the Agency sought to remove Complainant before the internal investigation
was complete.

The Agency did not submit any opposition to the appeal.

STANDARD OF REVIEW

The decision in this matter was issued without a hearing. Accordingly, it is subject to a de novo
review by the Commission. 29 C.F.R. § 1614.405(a); Equal Employment Opportunity
Management Directive (MD-110) for 29 C.F.R. Part 1614, at Chap. 9, § VI.B. (Aug. 5, 2015). A
de novo review requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker and 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

1. Preliminary Matter

As an initial matter, we find no error in the AJ’s decision not to strike the Agency’s motion for
summary judgment. In his decision granting summary judgment, the AJ recounted that in
Complainant’s opposition motion, Complainant requested a ruling on his then-pending motion to
compel, an extension of the discovery deadline, and the opportunity to supplement his opposition
to the Agency’s motion, provided that his motion to compel was granted. By order dated
September 26, 2017, the AJ granted Complainant’s motion in part and denied it in part. He directed
the Agency to provide full and complete responses without objection to certain of Complainant’s
discovery requests, extended the discovery deadline, and permitted Complainant the opportunity
to supplement his opposition to the Agency’s motion for summary judgment. Complainant elected
not to supplement his opposition to the motion.

Regarding Complainant’s argument concerning error by the AJ, we note that AJs have full
responsibility for the adjudication of the complaint, including overseeing the development of the
record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a) and (e).
This responsibility gives the AJ wide latitude in directing the terms, conduct, or course of EEOC
administrative hearings including discovery, and the determination of whether to admit evidence,
or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109; MD-110, Chap. 7,
§ III.D; Douglas F. v. Equal Employment Opp’y Comm’n, EEOC Appeal No. 0120122183 (Dec.
4, 2015); Andy B. v. Dep't of Veterans Aff., EEOC Appeal No. 0120131912 (Oct. 28, 2015);
Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122616 (June 23, 2015).

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We also find no abuse of discretion. As noted above, the AJ has wide latitude in directing the
hearing process. In addition, given the AJ's broad authority to regulate the conduct of a hearing, a
party claiming that the AJ committed an abuse of discretion faces “a very high bar.” Gail S. v.
U.S. Postal Serv., EEOC Appeal No. 0120180921 (Sept. 21, 2018); Kenyatta v. Dep’t of Justice,
EEOC Appeal No. 0720150016 (June 3, 2016). Complainant has not established the AJ abused his
discretion in considering the motion for summary judgment, even if it was filed outside the time
deadlines in his scheduling order. In addition, the Complainant provided his opposition to the
grant of the motion and, also, the AJ also has authority to grant summary judgment of his own
accord after notice to the parties without receiving a motion for summary judgment from either
party.

2. Grant of summary judgment

We must determine whether the AJ appropriately issued the decision without a hearing. 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.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Having considered
Complainant’s arguments in his opposition to the motion for summary judgment and on appeal,
we find that the AJ correctly determined that there are no genuine issues of material fact or
credibility that merited a hearing. We have long recognized that the party opposing summary
judgment must do more than merely recite facts or rest on his pleadings to demonstrate that such
a genuine dispute of material fact exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543
(Feb. 28, 2002). We have also recognized that not every factual dispute qualifies as a genuine
issue that will prevent summary judgment. Adah P. v. Dep’t of Veterans Aff., EEOC Appeal No.
0120140100 (Mar. 31, 2016); Complainant v. Dep’t of Justice, EEOC Appeal No. 0120120271
(Aug. 21, 2014). Therefore, the AJ’s issuance of a decision without a hearing was appropriate.

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3. Applicable law

a. Disparate treatment

Complainant alleged that he was subjected to disparate treatment. Generally, the adjudication of
a complaint of discrimination alleging disparate treatment follows a three-step analysis.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, the burden is on the
complainant to establish a prima facie case 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
challenged action. Second, the agency has the burden of production to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Third, once the agency has articulated a legitimate, non-discriminatory reason for its
actions and, in order for the complainant to prevail, the complainant must show by a preponderance
of the evidence that the agency’s stated reasons are pretext for discrimination. Where the Agency
has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

Complainant can demonstrate that the Agency’s reason for its action was pretextual, that is, not
the true reason for the Agency’s action by showing that the reason offered by management is
factually baseless, is not the actual motivation for the action, or is insufficient to have motivated
the action. See Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1130 (7th Cir. 1997); Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Also, pretext may be supported by evidence of
unequal applications of agency policy. Harris v. Dep’t of the Army, EEOC Request No. 05940999
(Mar. 14, 1996). “Pretext can be demonstrated by ‘showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for
its action that a reasonable fact finder could rationally find them unworthy of credence.’”
Dalesandro v. United States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) citing
Morgan v. Hilti, Inc., 108 F.3d at 1323.

b. Age discrimination

Complainant has alleged unlawful discrimination based on his age. The Age Discrimination in
Employment Act (ADEA) prohibits employers from discriminating against individuals age 40 and
older based on their age. 29 U.S.C. § 623(a).

c. Reprisal

Complainant has also alleged that he was subjected to reprisal. EEOC Regulation 29 C.F.R.
§1614.101(b) provides that no person shall be subject to retaliation for opposing any unlawful
discriminatory practice or for participating in any stage of the EEO complaint process or in judicial
proceedings. To establish a prima facie case of reprisal, the complainant must present facts that,
if unexplained, reasonably give rise to an inference of discrimination. See Cardozo v. Dep't of
Homeland Security, EEOC Appeal No. 07A30014 (June 2, 2004). Specifically, the complainant
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may establish a prima facie case of reprisal by showing that: (1) he engaged in protected activity;
(2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected activity and the adverse
treatment. See Whitmire v. Dep’t. of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000);
Coffman v. Dep't of Veteran Aff., EEOC Request No. 05960473 (Nov. 20, 1997). The nexus may
be shown by evidence that the adverse treatment followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of
Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Although temporal proximity raises an
initial inference of discrimination, it does not establish pretext. See Matilda C. v. Equal
Employment Opportunity Commission, EEOC Appeal No. 0720140027 (July 31, 2018); EEOC
Compliance Manual – Retaliation, § II.E.2.

4. Merits of complaint

Complainant recounted the incident that occurred that led to his removal in his affidavits and a
statement made in a Volunteer Statement to the Postal Police. Affidavit A at 13-14; Exhibit 5 at
3. He explained that he went to his locker to get a hat. As he approached his locker, E1 asked him
if had any snacks in his locker. Complainant smelled alcohol on E1’s breath, gave him some
peanuts, and reminded him to “chill” on his drinking because a long-time coworker had been
recently pressured to retire for drinking at work. Complainant was surprised from behind when
E1 pinned Complainant’s arms and began yelling at Complainant, “You don’t run me!” When E1
became more abusive, he told E1, “Fuck you.” When E1 grabbed him and put him in a “bear hug,”
Complainant struggled to free himself and reached into his “pocket to grab something to help me
free myself.” Exhibit 5 at 3. E1 then released Complainant.

On the following day, according to Complainant, he passed by E1 and E1 began to yell, curse and
threaten him. After being verbally assaulted three times, Complainant made the sign of the cross
and said the Lord’s Prayer. E1 became agitated and approached him. Two female co-workers
grabbed E1 and took him outside and Complainant returned to work. When Complainant returned
to work, two Agency Police Officers approached him to inform him that E1 had accused him of
threatening to cut him with a knife. He told the officers that it was E1 who attacked him. He also
told the officers that in an attempt to free himself from the bear hug, he told E1 that he would hurt
him if E1 did not release him.

The record contains E1’s statement in which he provided his version of the incident. Exhibit 5 at
4. He stated that it was Complainant who physically attacked him, approaching him in a
threatening manner and that Complainant attacked him with a knife, of which pictures were taken.
He accused Complainant of jumping into a conversation that he was having with another employee
and pushing E1 out of the locker room. As he was walking away, Complainant charged him again
and two employees grabbed and held him. E1 also stated that on the day following, February 27,
2015, Complainant called him on his phone six times. Complainant also drove past on a forklift
slowly and made the cross sign with his fingers and said that E1 was “nothing but the devil.” Id.
Complainant returned, having gotten off the forklift, and put his hands in E1’s face and made the
same cross sign.
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The record also contains an Investigative Memorandum (IM), dated March 9, 2015, regarding the
incident on February 26, 2015. Exhibit 6. Postal inspectors were notified by E1 of an alleged
assault involving a knife. The IM contains Complainant and E1’s version of what occurred and
what also occurred on the following day. The IM also contains statements taken from witnesses
who were alleged to have been present during the incident.

In support of his claim of disparate treatment, Complainant identified two comparators who were
treated more favorably than he was. Comparator-1 had, according to Complainant, a prior history
of aggressive behavior and was involved in an incident that violated the Agency’s zero tolerance
policy but was returned to work. Affidavit A at 7. Comparator-2 also had, according to
Complainant, a prior history of aggressive behavior but when he violated the zero-tolerance policy,
he was returned to work. Id. Complainant stated that he was not aware of any employees accused
of the same conduct who were issued or not issued a notice of removal. Id. at 8.

Complainant, who was 53 at the time of the alleged discrimination, stated in his affidavit that age
was a factor in his removal because by removing an older employee, the Agency would save
hundreds of thousands of dollars in pay, pension, and benefits.

Upon our de novo review of the record, we conclude that Complainant was discharged, pursuant
to the Agency zero-tolerance policy and other regulations, for misconduct in which he was
involved and not for any discriminatory reasons. Assuming Complainant has established his prima
facie case on each of his alleged bases, Complainant failed to show that the Agency’s articulated
reason was pretextual. Accepting as true Complainant’s version of what occurred, including not
pulling a knife and injuring E1, and that E1 was the aggressor, the evidence does not demonstrate
by a preponderance that the Agency was motivated by discriminatory animus when it terminated
him. Complainant has not denied that an altercation occurred which was physical and verbal. In
addition, Complainant admitted that he reached into his pocket to grab something to break E1’s
hold of him, although he denied it was a knife. Also, assuming as true Complainant’s statement
that management officials were aware of his protected activity because he objected to women
being treated more favorably in assignments and overtime, his participation in protected activity
does not immunize him from acts of misconduct. Edmond C. v. Dep’t of Housing and Urban
Development, EEOC Appeal No. 0120140517 (Oct. 21, 2016); Complainant v. U.S. Postal Serv.,
EEOC Appeal No. 0120123174 (Sept. 11, 2014). Nor does it lead to a finding, without more, that
his participation in protected activity led to prohibited discrimination.

Complainant has not proven, nor does the record establish, that he was treated less favorably than
similarly-situated comparators. Neither Comparator-1 nor Comparator-2 were similarly situated
to Complainant. The Manager of Distribution Operations (MDO) stated that she was Comparator-
1’s manager and Comparator-1 was a supervisor of Distribution Operations. Affidavit D. She
also stated that she was not aware of any altercation in which Comparator-1 was involved and had
heard only a rumored allegation. However, both parties denied that any incident occurred. In
addition, none of the two comparators were supervised by the alleged discriminating officials, i.e.,
Complainant’s supervisor and the Manager, Maintenance Operations Support, both of whom
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signed his removal notice. Finally, and most significantly, Complainant described any alleged
altercation between the comparators as being verbal only. ROI at 00016.

Regarding his age claim, Complainant has not shown, other than by assertion and supposition, that
his removal was motivated by discriminatory animus. Complainant’s assertions and subjective
belief, however genuine, are not sufficient to establish discrimination.

Complainant has also failed to establish that it was reprisal that motivated the Agency. Although
his participation in protected activity may have occurred in temporal proximity to the decision to
remove him and therefore is sufficient to raise an inference of discrimination, the Agency has
articulated a reason for its action, i.e., misconduct, for which pretext has not been shown. While
the presence of errors, mistakes, or questionable credibility permits a finding of discrimination,
such a finding is not required, as here, if evidence is insufficient to show discriminatory motive or
intent. St. Mary's Honor Center v. Hicks, 509 U.S. at 514, 515, 519 (1993). Even if the alleged
responsible officials lied, Complainant failed to link the lie to the alleged discrimination. It is not
sufficient “to disbelieve the employer; the fact finder must believe the plaintiff's explanation of
intentional discrimination.” Id. at 519.

We have consistently held that, absent discriminatory animus, the Commission will not second-
guess an agency’s personnel decisions, and substitute our judgment for that of the Agency.
Burdine, 450 U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16,
1997). The question is not whether the agency made the best, or even a sound, business decision;
it is whether the real reason is discrimination.

At all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason was not the true reason, and that the
Agency acted on the basis of discriminatory animus. Complainant has not done so here.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant when it terminated him.

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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

August 13, 2019
Date