Leigh K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 7, 2019

2019000250 (E.E.O.C. Aug. 7, 2019)

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

Leigh K.,1
Complainant,

v.

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

Appeal No. 2019000250

Agency No. 1G701001618

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 30, 2018,
final decision concerning an equal employment opportunity (EEO) complaint claiming
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

During the period at issue, Complainant worked as a Mail Handler, GS 4 at the Agency’s New
Orleans Processing and Distribution Center in New Orleans, Louisiana.

On February 20, 2018, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on sex (male) when:

on December 20, 2017, Complainant was placed on Emergency Placement, and
subsequently, on or around January 24, 2018, Complainant 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.
2019000250

2
The record indicates that Complainant amended the instant formal complaint to include two
additional claims. The Agency, however, dismissed these two claims pursuant to 29 C.F.R.
§ 1614.107(a)(1), for failure to state a claim.2 The record further indicates that Complainant
submitted a second amendment to the formal complaint to include one more additional claim.
Complainant, however, subsequently withdrew this claim on June 1, 2018.

After an investigation for the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a final decision.

On July 30, 2018, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

2 On appeal, Complainant does not dispute the procedural dismissal of these claims. Therefore,
we need not address these claims further in this decision.
2019000250

3
Here, Agency management articulated legitimate, nondiscriminatory reasons for placing
Complainant on Emergency Placement and issuing a Notice of Removal. The Transportation
Manager (“M1”) stated that he placed Complainant on Emergency Placement for making a
verbal threat, in accordance with the Employee and Labor relations Manual (“ELM”) section
665.24 which establishes a zero tolerance policy for violence or threats of violence by anyone at
the Agency. Specifically, M1 stated that Complainant told him “you’re lucky I don’t have my
gun because I would have shot you.” M1 explained that he consulted with the Senior Plant
Manager (“M2”) before he placed Complainant on Emergency Placement.

Complainant’s supervisor (“S1”) explained that Complainant was placed on Emergency
Placement for threating to shoot M1 if he had a gun. S1 explained that he was responsible for
issuing the Notice of Removal and he discussed this action with Labor, M1, M2, and the
Operations Distribution Manager after an investigative interview was conducted.

A copy of the December 21, 2017 Emergency Placement Off-Duty Status letter indicates
Complainant was placed in non-duty non-pay status, effective December 20, 2017, for violating
Article 16.7 of the National Agreement which permits placing an employee in off duty status
“where the employee may be injurious to self or others.” M1 further states in the letter that

At approximately 0750, I asked you to remove two stacks of pallets from the trailer. You
refused. I asked you again, and you refused again. I asked you what was the problem.
You said, “Nothing is the problem. You asked me to move those pallets, and I said no.”
I gave you a direct order to remove the pallets, and you told me I would have to call your
supervisor. I took the keys from the forklift and proceeded to call your supervisor. You
said, “Now you’re disrespecting me. You’re lucky I don’t have my gun, ‘cause I’d shoot
you.”

The record includes a copy of a Postal Inspection Service incident report which states that on
December 20, 2017, M1 informed the Postal Police that Complainant “became hostile after he
was given several verbal directives to perform a job duty.” The report also states that M1
requested that Complainant be escorted off the premises for his refusal to perform his duties.
The incident report further indicates that later that day, M1 revealed to management that
Complainant “not only became irate but verbally stated that, ‘If I had my gun, I would shoot
you’” which prompted M1 to contact the Postal Police.

An Assault and Threat Specialty Report conducted by the Postal Inspection Service indicates that
Complainant was interviewed on December 22, 2017 by the Postal Inspection Service. The
report further indicates that Complainant acknowledged that he did not follow M1’s instruction
because “he did not know that M1 was a manager.” The report states that Complainant “denied
saying anything about a gun,” denied that he owned a gun, and Complainant indicated that M1
removed the keys out of the forklift and threw the keys which struck Complainant’s leg.

A copy of the January 24, 2018 Notice of Removal indicates that Complainant was charged with
unacceptable conduct. The notice states that Complainant admitted during his investigative
2019000250

4
interview that he refused to follow M1’s repeated instruction on December 20, 2017. The notice
also states that after Complainant refused to comply with M1’s instruction, M1 took the keys out
of the forklift and placed the keys on a tray located on the back of the forklift. The notice further
states that Complainant’s actions in addition to telling M1 that he was lucky he did not have his
gun at the time of the incident violated EML sections 665.1 “General Expectations;” 665.11
“Loyalty;” 665.13 “Discharge of Duties;” 665.16 “Behavior and Personal Habits;” and 665.24
“Violent and/or Threatening Behavior.” The notice also explains that Complainant’s behavior
violated the Louisiana District Zero Tolerance Policy which includes “any actual, implied, or
veiled threat made seriously or in jest.”

We acknowledge that Complainant denied making a verbal threat toward M1. We further
acknowledge Complainant’s statement that M1 allegedly threw the forklift keys at him instead of
placing the keys on a tray located behind the forklift. These statements directly conflict with
M1’s account of the December 20, 2017 incident. Here, however, Complainant effectively
waived his right to have this matter considered before an EEOC AJ when he requested that the
Agency issue a final decision. If Complainant had not requested a final decision, then the AJ may
have developed the record more through discovery and cross-examination of witness. Moreover,
we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left with
Complainant’s version of events and that of Agency management which are completely at odds.
As such, the evidence of record was at best, in equipoise. See Complainant v. Dep't of Health
and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of
Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric.,
EEOC Appeal No. 0120102187 (Aug. 23, 2012).

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s sex.

We 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 (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.
2019000250

5
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.
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

2019000250

6
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 7, 2019
Date