Maranda B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jul 26, 2019

0120180960 (E.E.O.C. Jul. 26, 2019)

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

Maranda B.,1
Complainant,

v.

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

Appeal No. 0120180960

Agency No. 4C440005517

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 19, 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., and Section 501 of the Rehabilitation Act of 1973
(“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the
Lyndhurst Post Office in Cleveland, Ohio.

On May 8, 2017, Complainant filed an EEO complaint alleging that she had been subjected to
discrimination by the Agency on the bases of race (Caucasian), national origin (Italian), color
(White) and disability (on the job injury to Neck, Rotator Cuff, and Spine, Fibromyalgia, and
Chronic Fatigue Syndrome) when, on January 11, 2017, she 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.
0120180960

2
During the investigation of the complaint, the evidence revealed the following relevant facts.

The ROI identifies three Managers, Customer Service Operations (“M1,” “M2,” and “M3”) that
were involved in Complainant’s NOR. The Deciding Official, M1, (African-American, Black,
American, disability status not specified) at Lyndhurst Post Office, was Complainant’s previous
supervisor. M1 had been in the building, but did not witness Complainant’s injury in December
2012. M2 (White, White, American, disability status not specified), also located at Lyndhurst
Post Office assisted with the pre-disciplinary interviews and investigation. M2 also worked with
Complainant before her injury. The concurring official was M3 (White, White, American,
disability status not specified), based in the Northern Ohio Administrative Offices. M3 met
Complainant while she was on detail as an acting supervisor.

On December 24, 2012, a shelf fell on Complainant’s right shoulder, right arm, and the right side
of her head. She filed a Notice of Traumatic Injury (Form CA-1) claim with the Department of
Labor (“DOL”) Office of Workers Compensation Programs (“OWCP”) and began receiving
benefits on February 8, 2013. Her doctor’s office continued to fax a CA-17 with her physical
limitations and status to the Agency every two weeks.

Complainant underwent two surgeries on her right shoulder, and received multiple injections into
her shoulder and neck. However, she did not recover to a point where she could perform the
duties of a letter carrier, which required the ability to stand or walk continuously for 8 to 10
hours, climb, bend, and stoop intermittently, push, pull, or carry 20-30 pounds continuously and
lift up to 70 pounds intermittently. According to her medical records, Complainant could not turn
her head without also moving her body, she could not lift her arm without pain, and she could
not carry a purse on her right shoulder.

On September 4, 2015 the Postal Service Office of the Inspector General (“OIG”) initiated an
investigation of Complainant’s OWCP claim during a periodic review of employees on workers’
compensation because her Form CA-17, submitted on August 31, 2015, said she was
“incapacitated” (could not work) with no further details. According to M1, the OIG conducts
surveillance on anyone claiming an accident who remains out for over a few months.

Between September 2015 and March 2016. OIG conducted intermittent surveillance of
Complainant’s activities (e.g. shopping, driving, walking). In October 2015, Complainant and
her family took two trips to a Cedar Rapids amusement park, where Complainant was observed
riding multiple high speed roller coasters with posted warnings for individuals with neck injuries.
When OIG investigators provided video evidence to Complainant’s doctor, he expressed surprise
that Complainant had full range of motion in her neck and had no observable pain while on the
rides. On March 10, 2016, OIG interviewed Complainant about her injury and limitations and
found that her answers were not truthful and forthcoming.

On June 1, 2016 OIG issued a Report that included photo and video documentation, as well as
descriptions by investigators of instances of Complainant engaging in a range of activities that,
according to her CA-17 and medical record were beyond Complainant’s restrictions.
0120180960

3
OIG presented the report to M1, who, along with M2, conducted two pre-disciplinary interviews
(“PDIs”) with Complainant and her union representative. Complainant did not respond to two
other requests for a PDI. M1 and M3 issued the NOR, identifying their determining factors as
Complainant’s mis-representation of her medical limitations and her participation in falsifying
her medical documentation, both in violation of Agency policy.

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, she 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 her 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”).

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
0120180960

4
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).

The Agency’s legitimate nondiscriminatory reason issuing the NOR was that Complainant
engaged in improper conduct. Specifically, Complainant did not demonstrate that she is “honest
and trustworthy,” a requirement of all Agency employees. The NOR relies on the OIG Report,
and lists numerous instances where Complainant contributed to providing false documentation to
OWCP, and gave false statements to Postal Inspectors. It also recounted specific instances where
Complainant’s actions while under surveillance demonstrated that her CA-17 claim of
incapacitation was invalid.

The NOR establishes that Complainant’s actions violated Agency policy, such the Agency’s
Labor Relations Manual (“ELM”) section 661.2(l), which prohibits fraud or false statements in a
government manner. In addition, Complainant’s actions violated the Postal Service Standards of
Conduct contained in ELM Section 665, specifically Sections 665.11 (Loyalty) and 665.16
(Behavior and Personal Habits). The NOR also demonstrates that it is consistent with the
disciplinary procedures in Article 16.7 of the Collective Bargaining Agreement (“CBA”)
between the Agency and the Union.

Complainant disputes the Agency’s legitimate nondiscriminatory reason outright, by contending
that she never engaged in the underlying improper conduct. However, Complainant offers no
evidence of this. Even Complainant’s doctor issued an updated CA-17 showing she could work
up to 4 hours per day once he saw the Cedar Rapids video.

Complainant argues that the “improper conduct” identified in the NOR is invalid because it is
based events in the OIG Report that were “manufactured and financed” by the Agency. For
instance, she stated that she and her family only went to Cedar Rapids because the Agency,
posing as a private company, provided her with free tickets, indicating that she had won them.
However, this argument is irrelevant to the fact that the OIG investigation, whether or not
Complainant was somehow entrapped, revealed that Complainant’s claim of incapacitation was
false, which was the basis for the NOR.

On appeal, Complainant appears to argue that M1 targeted her to be the subject of an OIG
Investigation, and that M1 avoided OIG investigations for three of Complainant’s colleagues that
were black/African-American. Notwithstanding the question of whether these colleagues were
similarly situated to Complainant to warrant comparison, we find no evidence of this other than
Complainant’s bald statements. Moreover, the OIG Report cited routine reviews for how the
investigation was initiated, and M2 testified that the lack of information on Complainant’s
August 31, 2015 likely caused OIG to notice her CA-17.

0120180960

5
Complainant has not offered any evidence to support her argument that she did not engage in the
improper conduct alleged. She has also failed to offer evidence that would indicate M1 issued the
NOR for reasons other than the proffered legitimate nondiscriminatory reason.

CONCLUSION

Accordingly, we AFFIRM the Agency’s finding of no discrimination.

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).
0120180960

6
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

July 26, 2019
Date