Bryan Y.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120172455 (E.E.O.C. Nov. 16, 2018)

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

Bryan Y.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120172455

Agency No. 1J494003116

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from the Final Agency
Decision (“FAD”) 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 was employed by the Agency as
a Postal Support Employee ("PSE"), PS-06, at the Grand Rapids Processing and Distribution
Facility in Grand Rapids, Michigan.

On January 3, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him based on his race (African-American) when:

1. On September 21, 2016, he was place on Emergency Placement, and

2. On or around October 12, 2016, he was issued a Notice of Removal.

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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On March 28, 2016, after investigating the claims, the Agency provided Complainant with a
copy of the Report of Investigation (“ROI”) and notice of his right to request a hearing before an
Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge
(“AJ”). When the Agency did not receive a response from Complainant within the time provided
in 29 C.F.R. § 1614.108(f), it issued a FAD, pursuant to 29 C.F.R. § 1614.110(b).

The record provides the following undisputed facts:

On April 17, 2015, Complainant applied online for a Mail Handler position, (“Application 1”). In
June 2015, the Operations Industrial Engineer (“M1,” Caucasian/Native American), notified
Complainant that he had been accepted for employment, but, as the Mail Handler position was
no longer available, offered him a PSE, Mail Processing Clerk, position instead. Complainant
accepted, and on June 26, 2015, met with M1, who asked him to submit an application for the
PSE position (“Application 2”). Complainant understood this to be a formality, and, believing
M1 pre-filled out the entire form, signed each page without checking the responses.

Complainant was hired on October 25, 2015, and started working as a PSE in the Grand Rapids
Carrier Annex on November 7, 2015. He successfully completed the 90-day probationary period,
and the record does not reflect any conduct or professional issues. However, on September 13,
2016, the Office of Personnel Management (“OPM”) notified M1 that Complainant’s
background check, which he had authorized as part of the application process, revealed
discrepancies on Question 7(e).

Question 7(e) of PS Form 2591 (employment application) asks if the applicant ever committed a
crime, specifying that:

“All felony and misdemeanor convictions and all convictions in State and Federal
courts are criminal convictions and must be disclosed. Disclosure of such
convictions is required even if you did not spend any time in jail. Or were not
required to pay a fine.”

Complainant answered Question 7(e) as “yes” on Application 1 and “no” on Application 2.
Handwritten notes on the applications indicate Complainant disclosed multiple undated
misdemeanor convictions when he was interviewed. Complainant’s background check revealed 4
prior misdemeanor convictions, and 2 charges for misdemeanors that did not specify whether
Complainant was convicted or not. According to OPM, Complainant needed to provide proof
that he was not convicted of the two charges to demonstrate he had not falsified his application.

On September 21, the Supervisor Customer Service (“M2,” Caucasian), and the Acting Senior
Manager Distribution Operations (“M3,” white) met with Complainant regarding the two charges
and discrepancy in his applications. Complainant responded that he disclosed his past
convictions during the interview, and on his application. When informed that he checked “no”
for Question 7(e) for Application 2, Complainant explained that he thought M1 copied his
answers from Application 1 to Application 2.
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Complainant vigorously denied that he was the subject of the additional two charges. M2
provided Complainant with 7 days to submit evidence that he did not falsify his application, then
put him on Emergency Placement (“EP”).

Once Complainant was on EP, per OPM and Agency regulations, M1 investigated the
discrepancy in Complainant’s application and background check. According to M1, even if
Complainant could show that he did not falsify his application, one of the convictions was under
5 years old, making him ineligible for employment with the Agency.

Complainant did not provide evidence that the charges were erroneous, or that would otherwise
show he did not falsify his application, and on October 13, 2016, M2 terminated Complainant’s
employment, with M3 as the concurring official.

In its FAD, the Agency concluded that Complainant failed to prove discrimination as alleged,
and the instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she 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). The
burden 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). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

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It is well established that for comparative evidence relating to other employees to be considered
relevant, all relevant aspects of the employees' work situation must be identical or nearly
identical, i.e., that the employees report to the same supervisor, perform the same job function,
and work during the same time periods. See Anderson v. Dep’t of Treasury, EEOC Appeal No.
01A22092 (Mar. 13, 2003); Stewart v. Dep’t of Def., EEOC Appeal No. 01A02890 (Jun 27,
2001); Jones v. United States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13, 2000). For
claims where the alleged discriminatory action is an agency’s response to “problem conduct,”
where the proffered “comparator's conduct was materially distinguishable from that of
complainant, he or she is not “similarly situated” to Complainant. See Grappone v. Dep’t of the
Navy, EEOC No. 01A10667 (Sept. 7, 2001) request for reconsideration denied, EEOC Request
No. 05A20020 (Dec. 28, 2002).

The Agency’s legitimate nondiscriminatory reason for placing Complainant on EP and
terminating his employment is that it acted in accordance with Agency policy and the Collective
Bargaining Agreement (“CBA”) between the Agency and the Union. The Agency’s Employee
and Labor Relations Manual (“ELM”) that as a matter of employee conduct, dishonesty or lack
of candor on an employment application is grounds for termination. The ELM policy is also
articulated in the employment application Complainant signed, which states that “[a] false or
dishonest answer to any question in this application may be grounds for not employing you or for
dismissing you after you begin work, and …any information you give will be considered in
reviewing your application and is subject to investigation.” CBA Article 12.02, “Falsification of
Application” provides that even after an employee completes his or her probationary period, if
the Agency discovers a falsification on the employee’s application, such falsification is grounds
for discharge.” The Agency also offered documentation for past PSE Clerks whose employment
was terminated when a background check revealed a criminal record they had not disclosed on
their application.

Here, a federally generated background report lists two charges for crimes with incomplete
conviction information, that Complainant did not disclose prior to hiring. This perceived
“falsification” or “lack of candor” was not resolved by Complainant’s interview with M2 and
M3, or through an Agency investigation by M1, and when provided with an opportunity to
present evidence that the charges did not result in convictions, or that the charges were
erroneously included in the report, Complainant failed to do so. M1 testified that “on more than
one occasion the employee has been able to resolve the issue by providing the documentation
that their application was correct,” and examples of such documentation are included in the
record.

Complainant argues that he was unable to obtain the necessary evidence in time because M2
refused to provide him with the very document he was expected to refute, and he did not receive
a written explanation until after the time to respond passed. He testifies that he disclosed
“everything,” listing two DUI offenses, minor in possession of alcohol, and driving with a
suspended license, which is consistent with the convictions listed on his background check and
the hand-written notes on his application.
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He further testifies that the two charges listed without information on conviction status were
most likely for another individual with the same name, which happened to him before.
Complainant emphasizes that the nature of these misdemeanor charges, assault, are different than
the nature of his prior convictions. However, Complainant has not offered sufficient
documentary evidence. By withholding the background check results and delaying his EP written
notice, the Agency likely placed Complainant at an unnecessary disadvantage, but it did not
prevent Complainant from taking steps to obtain documentation to correct the record. It also did
not prevent him from requesting an extension.

Complainant’s proffered comparators, who were convicted of crimes yet not terminated, are not
“similarly situated” to him, as they responded with evidence to rebut the discrepancy in their
background checks, and he did not. Complainant has not offered any other evidence that
Management acted with discriminatory motive.

Hearing Request

On appeal, Complainant alleges that the Agency prevented him from exercising his right to a
hearing, as it did not provide him sufficient notice. Prior to the conclusion of the investigation,
Complainant signed an agreement with the Agency acknowledging that to save paper, he “would
like to receive the ROI on CD and not hardcopy.” The ROI CD was sent to Complainant as
agreed, but he claims he did not realize it also contained a transmittal letter explaining his rights
and the hearing request form. Complainant asserted that he became aware that the hearing
request form was included in the ROI CD nearly three months later when he asked his EEO
Investigator when he could request a hearing. Shortly afterward, Complainant received the FAD.
Complainant does not explain why he failed to review the CD for the three-month period after its
receipt. Under these circumstances, we conclude that Complainant failed to exercise his right to
request a hearing in a timely manner. We, however, recommend to the Agency that in the future
when transmitting an ROI on a CD, it provide the complainant’s time sensitive election rights in
a visible, immediately accessible format. Under different circumstances, failure to do so might
result in a finding of inadequate notice of a right to a hearing,

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 finding that Complainant did not
establish discrimination as alleged.

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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

November 16, 2018
Date