Derrick P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jan 6, 2016

0120142800 (E.E.O.C. Jan. 6, 2016)

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

Derrick P.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120142800

Hearing No. 471-2013-00110X

Agency No. 1J-482-0007-11

DECISION

On August 1, 2014, Complainant filed an appeal from the Agency’s July 2, 2014 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Mail Handler at the Agency’s Processing and Distribution Center in
Pontiac, Michigan. On April 15, 2011, he filed an EEO complaint in which he alleged that his
Distribution Operations Supervisor (S1), his Distribution Operations Manager (S2), and the
Plant Manager (PM) discriminated against him on the bases of race (African-American) and
reprisal (prior protected EEO activity) by issuing him a 7-day suspension on January 27, 2011,
by placing him in emergency off-duty status on June 16, 2011, and by issuing him a notice of
removal on July 27, 2011.

1This 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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According to a notice of 7-day suspension dated January 27, 2011, and issued by S2,
Complainant became involved in an altercation with a white employee who had a reputation for
bullying and intimidating his co-workers. After interviewing both employees, S2 issued them
both 7-day suspensions that were later reduced to letters of warning. Investigative Report (IR)
238, 244, 291, 294, 305-06, 308.

Complainant received an official notice from the PM on June 16, 2011, that he would be put in
emergency off-duty placement status and would not be allowed to return to work until advised
to do so. The PM averred that he took this action after receiving a report from a Postal
Inspector that Complainant had exhibited belligerent and unstable behavior after the Postal
Inspector told him to return to work following an interview concerning another employee. The
PM contacted the Human Resource Office and was advised by a Labor Relations Manager to
have Complainant removed from the premises and given a fitness-for-duty examination. On
October 18, 2011, the emergency placement was rescinded and Complainant was given back
pay from June 16 to July 13, 2011. IR 250-51, 295-97; Agency’s Motion for Summary
Judgment, Exhibit B, p. 3.

Complainant received a notice of removal signed by S1 on July 27, 2011, for conduct
unbecoming an employee and failure to follow instructions in connection with an incident that
occurred on Saturday, July 6, 2011. While still in emergency off-duty placement status,
Complainant attempted to return to work without authorization. His access card was rendered
inoperable, so he entered the building by “piggy-backing” another employee. Because there
was no manager on duty, the PM was called in and had to personally escort Complainant out
of the building. The PM contacted the Labor Relations Manager, who suggested that he
consider the removal action, which was ultimately reduced to a seven-day suspension through a
grievance settlement entered into on October 14, 2011. IR 254, 273, 298; Agency’s Motion for
Summary Judgment, Exhibit A, p. 3.

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
but failed to raise an objection when the Agency filed a motion for summary judgment on
February 24, 2014. Accordingly, the AJ assigned to the case granted the Agency’s motion and
issued a decision on June 27, 2014. 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.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.
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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.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. When asked by the investigator why he believed that his race
and previous EEO activity were motivating factors in the issuance of the 7-day suspension,
Complainant responded that it was because the other employee was white and he was black,
and because S2 had completed EEO training three weeks before the incident. IR 164. He
points to a number of unsworn handwritten statements from other employees indicating that
they were intimated and bullied by the other employee involved in the altercation that led to the
suspension being issued. However, the fact remains that Complainant and the other employee
were disciplined in equal measure, which seriously undermines his claim of disparate treatment
as it pertains to the issuance of the 7-day suspension.

When asked why he believed the other disciplinary actions were motivated by unlawful
considerations of his race and EEO activity, he replied that there were at least a dozen people
who committed more infractions than he did and were still allowed to come to work every day.
IR 168-69. He also averred that the PM and the other officials initiated the removal action in
order to make him suffer, torment him, and humiliate him. IR 169-70. We must point out,
however, that the statutes the Commission enforces are not a civility code. See McFadden v.
Department of the Army, EEOC Appeal No. 0120122405 (October 12, 2012). They cannot be
used to prevent Complainant from being disciplined unless the decision to take disciplinary
action against Complainant is rooted in a motivation based upon his race and previous EEO
activity. And on this crucial issue, Complainant did not present evidence of any of the
indicators of discriminatory motive described above with respect to the off-duty placement and
the notice of removal. He has not submitted any sworn statements from other witnesses or
documents that contradict the explanations provided by S1 or the PM, or which call their
veracity into question.

We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to
the motivations of S1, S2, and the PM in connection with the disciplinary actions taken against
Complainant by these officials between January and July of 2011.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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

January 6, 2016
Date