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

Equal Employment Opportunity Commission

Jul 25, 2019

0120181022 (E.E.O.C. Jul. 25, 2019)

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

Heriberto P.,1
Complainant,

v.

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

Appeal No. 0120181022

Agency No. 4J530008617

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 28, 2017 Final Agency
Decision (“FAD”) concerning an 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 City Carrier, Q-01, at the Agency’s Glenview Post Office facility in Glenview, Illinois.

On July 28, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him
to discrimination on the bases of Color (Black), Race (Black) and Sex (Male) when:

1. On April 13, 2017, he was put on Emergency Placement (“EP”), and,

2. On May 5, 2017, he was issued a Notice of Removal (“NOR”).

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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The evidence developed during the investigation of the complaint revealed the following.

Complainant’s immediate supervisor (“S1,” male, color/race not specified) was a Supervisor,
Customer Service, EAS-17/Acting Manager. Complainant’s second level supervisor was the
Postmaster, EAS-22, (“PM,” Black/African American, female).

On April 13, 2017, before Complainant left for his route, S1 and PM instructed him to deliver an
additional piece before 6:00 PM, as an Auxiliary Assignment. Complainant explained that due to
a heavy package load and roadwork on his route it was unlikely he could take the assignment
without incurring overtime. Complainant left without the package, but told S1 and PM that he
would text them later. At 2:30 PM, another City Carrier, Q-01, (“C1,” Black/African American,
Female), pulled up to Complainant while he was on his route and said, “I’m dropping off your
piece,” referring to the Auxiliary Assignment.2 Complainant refused to take it. He told C1 that
he did not have room in his truck, and that S1 and PM were aware he would text them if he could
take the assignment. C1 called PM, and per PM’s instructions, C1 told Complainant that he
needed to take the piece for delivery or make arrangements with S1, otherwise he would get
written up for “failure to follow instructions.”

According to Complainant, C1 was only there because she and PM were friends, and, since C1
was not a supervisor, she was not authorized to instruct him to do anything. According to C1,
Complainant yelled that he was going back to the post office, slammed the door of his vehicle,
then drove toward her as though he was going to hit her, before veering away. Complainant
denies C1’s account, but when he returned to the post office, alleges that PM accused him of
trying to “run over” C1. Before Complainant could explain himself, PM put him on Emergency
Placement (“EP”) based on his alleged action toward C1, and because PM felt he was acting
“irate, loud, and intimidating.”

A Supervisor, Customer Service, EAS-17, (“S2,” Female, Color/Race not specified) was situated
between Complainant and PM when Complainant approached PM’s office. According to S2,
Complainant loudly told PM that C1 was lying about him trying to run her over, and attempted to
explain himself. S2 recalls PM repeatedly instructing Complainant not to point his finger at her,
which Complainant denied doing. His voice was raised, and he used profanities. PM told
Complainant he was on EP and instructed him to leave the premises. As Complainant left, S2
followed him to the garage and asked for his keys. Complainant threw two sets of keys at S2, one
after the other, and they landed on the floor in front of her. PM testifies that she contacted the
Agency’s Inspector General’s Office, but after they asked if Complainant actually hit someone
with his vehicle or caused harm and she said no, she did not hear back.

On April 18, 2017, Complainant was issued a Notice of Placement (BG-208) by a Supervisor,
Customer Services, EAS-17, (“S3” Brown, Asian/India, Female) placing him on a non-duty,
non-pay status effective April 13, 2018.

2 The FAD identifies C1 as “Acting Supervisor.”
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S3 testified that Complainant had been determined dangerous to himself or others based on
threatening behavior, and that S1, as Complainant’s first level supervisor initiated the action,
with PM as the concurring official.

On May 5, 2017, another Supervisor, Customer Services, EAS-17, (“S4,” Dark Brown, Sikh,
male), issued Complainant’s NOR, effective June 9, 2017 for Unacceptable Conduct, with PM as
the concurring official. S4 was also Management’s representative during mediation for the
grievance Complainant filed on the same matter. S4 ultimately agreed to reduce the NOR to a 7-
Day Suspension, with no back pay, and rescind the Notice of Placement in a settlement
agreement dated May 17, 2017.

At the conclusion of its investigation, the Agency provided Complainant with a copy of the
report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an
EEOC Administrative Judge (“AJ”). When Complainant did not timely respond, he was deemed
to have requested a FAD. In accordance with Complainant’s request, the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

The instant appeal followed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, (“EEO MD-110”) at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “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”).

Dissatisfaction with the Investigation

The Agency is required to develop an impartial and appropriate factual record upon which to
make findings on the claims raised in the complainant’s complaint. An “appropriate factual
record” allows a reasonable fact finder to draw conclusions as to whether discrimination
occurred. See 29 C.F.R. § 1614.108(b).

While the agency has an obligation under 29 C.F.R. § 1614.108(b) to develop an impartial and
appropriate factual record, the complainant can also cure defects in an investigation, after
reviewing the ROI, by notifying the agency (in writing) of any perceived deficiencies in the
investigation or by requesting a hearing before an AJ.
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See EEO Management Directive 110 (“MD-110”), Ch. 6, § XI and Ch. 7, § I (Aug. 5, 2015);
Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120110894 (Aug. 5, 2014). The
complainant is always responsible for proceeding with the complaint. 29 C.F.R. § 1614.605(e).

We find the Agency developed an “appropriate factual record,” as it contains testimony from
Complainant and multiple witnesses other than C1 and PM, who Complainant alleges lied about
the April 13, 2017 incident. There are also copies of the NOR, and the relevant Agency policies
and procedures. While we disagree with the EEO Investigator’s decision not to interview
Complainant’s immediate supervisor (“S1”), despite PM and S2 recommending him as a witness
and naming him as responsible for one of the alleged discriminatory actions, there is still
sufficient evidence “to draw conclusions as to whether discrimination occurred.”

On appeal, Complainant seeks further development of the record, stating, “[w]e still have not got
the truth and it’s [the Commission’s] job as well as mine to get it” and “we have plenty to learn.”
Complainant also contends that “the case [the Agency] put together proves nothing” and that it
“has no facts.” However, Complainant does not appear to have formally notified the Agency’s
EEO Director of his concerns, and, when provided the option of a hearing, he failed to respond.
If Complainant wanted an opportunity to develop the record through discovery and cross
examination of witnesses, he should have requested a hearing before an AJ. See Tommy O. v.
United States Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017).

Witness Credibility

Credibility is determined by the AJ during the hearing process. An AJ’s credibility determination
based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony, or the testimony so lacks in
credibility that a reasonable fact finder would not credit it. See MD-110, Ch. 9 § VI.B. For
reasons previously discussed, Complainant waived his right to a hearing.

On appeal, Complainant’s argument hinges on a document that contradicts one aspect of C1’s
testimony. Specifically, a PS Form 1723 for C1’s detail as an Acting Supervisor, Customer
Service, EAS-17. While C1’s affidavit testimony reflects that she started the detail in February
2017 (giving her supervisory status over Complainant during the alleged underlying incident on
April 13, 2017) the PS Form 1723 provides an assignment start date of April 22, 2017. For
purposes of this decision, we will assume C1 started her detail on April 22, 2017.

Complainant extrapolates that the PS Form 1723 is also evidence that Management and C1 both
lied about issues relevant to the merits of this complaint “because they feel it is OK to lie on
legal documents.” We disagree, PS Form 1723 relates to a specific piece of testimony by C1, and
does not contradict or even reference the merits of this complaint. We also do not find, based on
the PS Form 1723, that Management and C1’s testimony so lacks in credibility that a reasonable
fact finder would not credit it, particularly given S2’s supporting testimony.

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Settlement Agreement

On May 17, 2017, Complainant entered into a settlement agreement resolving a grievance he
filed through the Union, which provided that:

Parties agree to reduce the NOR issued on May 5, 2017 to a 7 day suspension.
The 7 day Suspension shall remain in [Complainant’s] file till November 25,
2018. No back pay shall be paid. Notice of Placement (BG-208) will be
rescinded….[this] constitutes a full and complete settlement of the above cited
grievance and resolve any and all issues pertaining thereto. (emphasis added)

The instant complaint is entirely comprised of issues pertaining to the May 17, 2017 agreement,
which Complainant agreed were resolved. As the April 18, 2017 Notice of Placement in an Off
Duty Status specified an effective date of April 13, 2017, and arose from the same incidents, we
find it synonymous with the EP raised in the instant complaint.

In his affidavit for this complaint, Complainant states, “grievance on EP went to 1 year on file
with no back pay. Notice of Removal was not grieved at all don’t know why.” However, the Step
1 Grievance, identifies the issue as “Did Management prove ‘Just Cause’ when they issued
[Complainant] a Notice of Removal.” Regardless, both actions are expressly referenced and
resolved in the May 17, 2017 settlement agreement.

Since the Agency did not dismiss the claims instant complaint on the grounds that they were
previously resolved in a binding settlement agreement, we will proceed with the analysis.

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.

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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. United States 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).

A fair reading of the complaint establishes that Complainant was alleging “sex-plus”
discrimination based on both his sex and race. In other words, PM allegedly treated him less
favorably than she treated non-black males and all females. See, e.g. Saenz v. Dep’t of the
Navy, EEOC Request No. 05950927 (Jan. 9, 1998). Complainant expressly stated in his Formal
Complaint “[PM] has a problem with me being a strong black male, and wants to use me as
an example for all others like me.” In his affidavit for the record, when asked how PM
discriminated against him based on race, Complainant explains “this is tough because we are
both black…she likes to belittle black men because of her personal experience.” Therefore, the
Agency erred in its prima facie case analysis when it found Complainant’s proffered
comparators (two non-black males and two black females) unsuitable because they shared one of
Complainant’s protected classes.

However, we find the Agency successfully established legitimate nondiscriminatory reasons for
the disciplinary actions in Claims 1 and 2, so further prima facie analysis is not necessary.

As an employer, the Agency has the discretion to determine how best to manage its operations
and may make decisions on any basis except a basis that is unlawful under the discrimination
statutes. Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) request for
reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) citing Furnco, Nix v.
WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th Cir. 1984). An employer is
entitled to make its own business judgments. The reasonableness of the employer's decision
may, of course, be probative of whether it is pretext. The trier of fact must understand that the
focus is to be on the employer's motivation, not its business judgment. Loeb v. Textron, Inc.,
600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Here, PM made a business judgment based on Agency
regulations, in response to Complainant’s actions on April 13, 2017.

For Claim 1, the Agency’s legitimate nondiscriminatory reason for the April 13, 2017 EP and the
April 18, 2017 “Notice of Placement in a Non-Duty/Without Pay Status” was “the threatening
behavior” Complainant exhibited on April 13, 2017, which resulted in a determination that
Complainant “may have been injurious to [him]self or others.” The Notice cites both the
Agency’s Zero Tolerance Policy and Article 16.7 of the Agreement between the Union and the
Agency (“CBA”), which states, in relevant part: “An employee may be immediately placed on an
off-duty status (without pay) by the Employer, but remain on the rolls where… [it is determined
that] the employee may be injurious to self or others.”

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For Claim 2, the Agency’s legitimate nondiscriminatory reason for issuing the May 5, 2017 NOR
was that on April 13, 2017, Complainant violated the Agency’s Zero Tolerance policy and the
Postal Service Standards of Conduct in the Employee Labor Manual (“ELM”), particularly
665.24 (Violence and/or Threatening Behavior). The NOR summarized Complainant’s actions
on April 13, 2017, noting that PM heard Complainant in the background as she was instructing
C1 over the phone, and that S2 allegedly had to “jump out of the way” when Complainant threw
his keys at her. Per Article 16.8 of the CBA, the Agency also considered Complainant’s
disciplinary record, which showed Complainant engaged in nearly identical conduct as the
instant complaint less than 6 months before.

Complainant denies taking any of the actions attributed to him on April 13, 2017. According to
Complainant, C1 and PM engineered the underlying event and “are in this lie together to teach
him a lesson… [which is] to obey them no matter what, or he will feel the power and strength of
women in power.” Yet, three other Supervisors, Customer Service, EAS-17 offer testimony
supporting PM’s version of the events of April 13, 2017. Complainant offers no evidence to
support his generalization that all of the supervisors provided false testimony. We find S2’s
testimony especially revealing, as she was located immediately between Complainant and PM
during the underlying incident, and offers a firsthand account of Complainant throwing two sets
of keys at her, one after the other. Based on the testimony in the record and the relevant Agency
regulations, we find that PM acted within the scope of her authority as second line supervisor
when she initiated the EP and was the concurring official for the Notice of Placement and NOR.
In other words, Complainant has not shown that PM exhibited judgment that was so
unreasonable as to indicate pretext for discrimination based on race and sex.

CONCLUSION

Accordingly, we AFFIRM the Agency’s decision that Complainant failed to establish
discrimination as alleged.

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.
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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.
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

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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

July 25, 2019
Date