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

Equal Employment Opportunity Commission

Jan 6, 2016

0120142791 (E.E.O.C. Jan. 6, 2016)

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

Edmond F.,1
Complainant,

v.

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

Appeal No. 0120142791

Hearing No. 440-2013-00198X

Agency No. 1J-607-0055-12

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 23, 2014 final Agency decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail
Handler at the Agency’s Processing and Distribution Center in Chicago, Illinois. Complainant
was hired by the Agency in July 1989. On March 24, 2012, Complainant approached a female
co-worker (CW1) and asked her for her boyfriend’s phone number. CW1 stated that
Complainant was standing too close to her and asked him to back up. After CW1 gave
Complainant the phone number, CW1 told Complainant that whatever was going on was
between him and her boyfriend was not her business. Complainant became angry and
mumbled under his breath as he walked away. CW1 asked him to repeat what he had just said

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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and Complainant responded with “you stupid bitch” and walked away. CW1 walked over to
her supervisor and Complainant held up his middle finger to her.

That same day, a supervisor (S1) observed Complainant on the workroom floor even though he
was not scheduled to work that day. S1 then asked Complainant to leave the unit. Later, S1
again observed Complainant on the workroom floor and instructed him to leave the building
since he was not on the clock. Immediately thereafter, CW1 informed S1 that Complainant
had called her a profane name and that he had held up his middle finger to her. Additionally,
CW1 reported that Complainant had approached her from behind in the cafeteria and touched
her buttocks.

After Complainant left the facility on March 24, 2012, he went to Union Station. That
evening, Chicago police officers observed that Complainant was drinking an open alcoholic
beverage. The officers asked Complainant for some identification, and Complainant started
yelling “pigs” and gave the officers the middle finger. The officers ejected Complainant from
the building and warned him to stay off Union Station property. While at the police station,
Complainant made several threatening comments to the officers, including that he had a sniper
rifle and was going to come back and kill them, that he had already planted bombs in Union
Station, and that the officers were in for a surprise. The Chicago Police Department contacted
the Postal Inspection Service to advise them of Complainant’s conduct, threats, and arrest.

On April 5, 2012, a supervisor (S2) held an investigatory interview with Complainant
regarding the March 24, 2012 incident with CW1. During this interview Complainant
admitted that he had called CW1 a bitch, but that he did not recall touching her
inappropriately. On April 18, 2012, S2 held an investigatory interview with Complainant
regarding the March 24, 2012 incident at Union Station. Complainant admitted only to
“giving the finger” to a police officer, and denied that anything else happened at Union Station
or the police station thereafter.

After the Agency obtained a copy of Complainant’s arrest and conviction record, the Agency
learned for the first time that Complainant had been convicted of a crime on July 14, 1989. In
addition, the Agency learned for the first time that Complainant had falsified his Appointment
Affidavit on July 26, 1989, when he affirmed that he had not been convicted of a crime in the
interim between his employment application and the Appointment Affidavit.

On May 31, 2012, Complainant was issued a Notice of Removal based on unacceptable
conduct relating to the incident with CW1, his failure to follow S1’s instructions to leave the
building, and his unacceptable conduct in Union Station. In addition, the Notice of Removal
charged Complainant with falsification of his Appointment Affidavit with respect to his
criminal conviction history.

On November 23, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of disability when, on April 24, 2012, he was placed on
Emergency Placement in an Off-Duty Status, and subsequently, on May 31, 2012, he was
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issued a Notice of Removal for unacceptable conduct and providing false information on his
employment application.

At the conclusion of the investigation of the complaint, 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 Administrative Judge (AJ). Complainant timely
requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially noted that Complainant failed to provide an affidavit during
the investigation. Next, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S2 stated that Complainant was placed
in an Off-Duty Status because he smelled like alcohol, and he used profanity and made a
gesture with his middle finger towards a female co-worker. S2 further averred that
Complainant was in the building without authorization and off the clock. S2 noted that
Complainant was then instructed to leave and escorted out of the building. Complainant
returned to the building and announced on the intercom system that he had been escorted out of
the building by S2 and a Union Steward, and then left the building. S2 confirmed that he
gave Complainant an opportunity to explain his actions prior to being placed off-duty, and
Complainant admitted to using profanity and making a gesture with his middle finger towards a
female co-worker, but he denied touching her buttocks. S2 affirmed that it was necessary to
require Complainant to leave the building and issue him the Emergency Off-Duty letter to
prevent him from reporting to duty until a complete investigation could be completed
concerning his conduct.

With respect to the Notice of Removal, S2 averred that he gave Complainant three
investigative interviews to address the issues that led to his Notice of Removal. Further, the
Threat Assessment Team researched Complainant’s background after the incidents at issue
occurred and it was discovered that Complainant was previously convicted of armed robbery,
between the time he applied and the time he was hired by the Agency. S2 added that
Complainant’s explanation for his conduct and falsification of his employment application was
unacceptable. S2 maintained that the Notice of Removal was warranted based on the totality of
Complainant’s offenses including violation of the Zero Tolerance Policy, making terroristic
threats towards the police, and falsification of his application. The Acting Distribution
Operations Manager concurred in issuing the Notice of Removal.

The Agency determined that Complainant failed to show that management’s reasons for its
actions were pretext for unlawful discrimination. As a result, the Agency found that
Complainant had not been subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency’s reasons for issuing him the Notice of
Removal are pretext for disability discrimination. Complainant admits that he had a
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confrontation with CW1, cursed her, and made an obscene gesture; however, he denies ever
having any physical contact with her. Additionally, Complainant admits that he went to Union
Station while drunk, returned after being told to leave by the police, and was arrested after
acting “disrespectful” to them. Complainant argues, however, that the Agency embellished his
actual actions to justify his removal. Further, Complainant contends that he held a reasonable
belief that his plea bargain was not a criminal conviction when he completed his Appointment
Affidavit and that he did not intentionally falsify his employment application. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

In analyzing a disparate treatment claim, where the Agency denies that its decisions were
motivated by discrimination and there is no direct evidence of discrimination, the Commission
applies the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica
Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). If Complainant establishes a prima facie case, then the burden of
production shifts to the Agency to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were a pretext for discrimination. At all times, Complainant retains the burden of persuasion,
and it is his obligation to show by a preponderance of the evidence that the Agency acted on
the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming arguendo that Complainant is an individual with a disability under the Rehabilitation
Act, and that he otherwise established a prima facie of case of discrimination, the Commission
finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, S2 affirmed that Complainant was placed in an Off-Duty Status on April 24,
2012, because he was in the building without authorization, smelled of alcohol, cursed a
female co-worker, and made an obscene gesture at her. ROI, at 81-82. Complainant was
escorted out of the building, but later returned. Id. After Complainant left, he was arrested at
Union Station and threatened police officers. Id. at 82, ROI, Ex. 6. The Threat Assessment
Team later discovered that Complainant had failed to disclose a criminal conviction in his
employment application. ROI, at 82. S1 stated that he conducted several investigatory
interviews regarding Complainant’s conduct and behavior, and determined that his explanations
were unacceptable. Id. As a result, S1 issued Complainant the Notice of Removal for the
totality of his offenses, including his violation of the Zero Tolerance Policy, making terroristic
threats according to the Chicago Police, and falsification of his employment application. Id.

As Complainant withdrew his request for a hearing, the Commission does not have the benefit
of an Administrative Judge's credibility determinations after a hearing. Therefore, the
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Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant's protected class was a factor in
any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed
to carry this burden. As a result, the Commission finds that Complainant has not established
that he was subjected to discrimination as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to 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 (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).

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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

January 6, 2016
Date