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

Equal Employment Opportunity Commission

Feb 25, 2016

0120142743 (E.E.O.C. Feb. 25, 2016)

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

Micki C.,
Complainant,

v.

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

Appeal No. 0120142743
Hearing No. 470-2012-00146X
Agency No. 4J460001812

DECISION

Complainant filed an appeal from the Agency’s June 26, 2014, final order concerning her 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. For
the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Full Time City
Carrier at the Michigan City Post Office. On February 8, 2012, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of national origin
(Hispanic), sex (female), color (brown), and reprisal (prior protected EEO activity)2 when: (1) on
October 21, 2011, she was placed on Emergency Placement/non-pay status; and (2) on
November 16, 2011, she was issued a Notice of Removal for Unacceptable Conduct.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
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.
2 Complainant filed two prior EEO complaints (an informal complaint that was closed on June
15, 2009 and a formal complaint that was closed on June 21, 2011). She has also given
testimony regarding the claims of other employees.

0120142743

2
Administrative Judge (AJ). Complainant timely requested a hearing which was held on May 20
and 21, 2014. A decision was reached on June 16, 2014. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.

AJ’S FACTUAL FINDINGS

On October 11, 2011, the National Association of Letter Carriers, AFL-CIO (NALC) scheduled
a meeting at a local VFW Hall. Complainant went to this meeting with a mind to protest the
union leaders' inaction on an award of back pay that she had won in arbitration. Complainant
was upset with the union officers over the back pay matter.

Complainant had a history of conflict with the Union President (U1) based on a difference of
opinion about his election to the office of President. In July 2011, Complainant asked
management to keep U1 away from her. However, by October 2011, Complainant voluntarily
confronted U1 at the Union meeting. Complainant arrived just prior to the time for the meeting
to begin. The Sargent at Arms for the union (C1) was at the bar with a drink. U1 and the Union
Secretary (U2) were seated nearby.

The meeting did not open for lack of a quorum, and the attendees remained a few minutes to see
whether other members would appear. During the delay in the opening of the meeting,
Complainant approached U1 and questioned him about the back pay matter. Complainant was
not satisfied with U1's response, and she became angry and began calling U1 names and using
foul language to get the attention of the officers. She called U1 a "pussy" for not taking action
on the arbitration award. Complainant was spitting while she talked.

Not having received a satisfactory response from U1, Complainant approached a Union Steward
(U3), all the while using inappropriate language. When U3 refused to help her, Complainant told
him, "you just don't have any balls." U3 referred Complainant back to U1, and then U3 left the
VFW. C1 approached Complainant.3 When he came up to Complainant, she was still yelling
and calling the officers names. C1 told Complainant to be quiet and back away. At that point,
Complainant turned her anger on C1, getting in his face and calling him a "pussy." Complainant
was spitting as she spoke and the spittle landed on C1. C1 then poured his drink down her
sweater.

While still in the VFW, Complainant called the police. When she saw C1 leaving the VFW, she
followed him to his truck afraid he would leave before the police arrived. Complainant stood
behind C1's truck to prevent his leaving. When it appeared to Complainant that C1 would back
out, she threw herself down behind the truck and began yelling that C1 had hit her.

Two police officers arrived to witness the incident in the parking lot. They observed
Complainant throw herself down and yell that C1’s truck was hitting her. However, they noted
3 C1’s job was to keep the peace at the meeting.

0120142743

3
that C1’s truck never moved. One of the police officers stated that he had smelled alcohol on
Complainant’s breath and that her eyes were bloodshot as if she had been drinking. The officers
attempted to arrest Complainant, but she resisted. Complainant was charged with public
intoxication. Much of what the Agency knew of the incident in the parking lot came from the
reports of the police officers on the scene. A supplemental report issued by the Michigan City
Police Department stating that two officers (P1 and P2) were dispatched to a domestic dispute.
When they arrived, they observed Complainant yelling and screaming. Complainant then threw
herself against the back of a parked car and yelled that the driver had just run over her. The
officers observed that Complainant was too intoxicated to understand their instructions to her.
The officers arrested Complainant for public intoxication. As P2 was placing handcuffs on
Complainant, she looked at C1 and stated "you are dead, you are so dead." When the police
officers spoke with Complainant at the scene of the confrontation, they could "smell a strong
odor of an alcoholic beverage coming from her breath." They also observed that her "eyes were
red and glassy” and noted that they were having “trouble understanding her due to her slurred
speech."

The record shows that Complainant is no stranger to problems with law enforcement. In 2009,
Complainant was arrested for an altercation with a police officer in a hospital parking lot. The
AJ concluded that the facts and circumstances of the 2009 incident are similar to the 2011
incident in this case. In 2009, Complainant was intoxicated, she resisted the authority of the
police, she fell to the ground, and she was loud and aggressive. Prior to this, in 2007,
Complainant was arrested for smashing a boyfriend's back car window and scratching the
boyfriend. She executed a plea to pay restitution for dismissal of the charges.

The AJ concluded that it is clear from the police officers’ supplemental report that they smelled
the alcohol from Complainant’s breath. The AJ concluded that this is different than smelling the
alcohol on her clothes, as Complainant argues was the case. The police officers also stated in the
supplemental report that, while they were handcuffing Complainant, she "looked at C1 and stated
"you are dead, you are so dead."

Complainant and C1’s supervisor at the time (S1) first learned about the incident in a text
message from C1 on the evening of October 20, 2011. Later, on October 21, 2011, C1 spoke
with S1 and told him that Complainant had threatened him and that he did not feel safe or
comfortable being in the same building with her. On October 21, 2011, S1 requested
disciplinary action in the form of an emergency placement for Complainant. S1 wrote that the
request was made “because Complainant threatened a coworker as she was being arrested for
public intoxication."

On October 28, 2011, S1 issued Complainant an Emergency Placement in an Off-Duty Status.
After issuing the emergency placement, S1 conducted an investigation of the incident. S1
conducted two internal investigations (II) with Complainant regarding the October 20, 2011,

0120142743

4
incident. The first II dealt with Complainant missing work on October 21, 2011,4 and the second
II dealt with events of October 20, 2011. S1 also conducted an II with respect to C1’s conduct.

The Postmaster (PO) was the concurring official on Complainant’s removal. Before giving her
concurrence, PO called P2, one of the officers at the scene on October 21, 2011. It had come to
the attention of PO that one of the police officers was an acquaintance of C1, so she called the
other officer to assure herself that the report was accurate. P2 described Complainant as very
drunk, nearly unable to stand unassisted the day of the incident. PO had no reason not to believe
P2. P2 also confirmed that Complainant made the threat to C1 as it was stated in the police
report. In addition, P2 told PO that he perceived Complainant’s words to be a credible threat.
S1 issued a Notice of Removal, dated November 16, 2011, to Complainant, charging her with
Unacceptable Conduct. The decision to discipline Complainant was primarily made for
threatening a co-worker.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

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 EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

The AJ concluded that the record does not support a finding of discrimination or reprisal. The
AJ found insufficient evidence of pretext or discriminatory/retaliatory motives for the decision to
suspend and later remove Complainant from her position with the postal service.

The AJ noted in his decision that Complainant makes several arguments that the Agency’s
articulated reasons are pretext for discrimination/retaliation. However, he found that most are
not relevant because they do not address the reason for the termination (i.e., threatening a co-
worker with harm).

For example, Complainant argues that there is no dividing line between what occurred inside and
what occurred outside the VFW. She also believes that C1's conduct precipitated the VFW's
action in throwing the union out of the hall. However, the AJ found that there is no probative
4 Complainant missed worked because she was arrested.

0120142743

5
evidence to support this contention as it is just as possible and reasonable to assume that
Complainant's conduct in going from person to person while yelling, spitting, and name calling
precipitated the VFW's decision to throw the union members out. The AJ notes that nothing
happened inside the VFW until Complainant entered the facility and began yelling and carrying
on in an obnoxious manner with the union officers. The AJ further notes that Complainant’s
conduct does not excuse the conduct of C1 and found that no evidence exists in the record to
support any distinction between poor conduct inside the VFW and poor conduct outside the
VFW.

However, the AJ notes that the Agency's discipline of Complainant has nothing to do with the
events inside the VFW. Accordingly, the AJ concluded that the differentiation regarding the
conduct inside and outside the VFW is not relevant. Rather, the discipline was focused on the
threat made by Complainant against a co-worker. The AJ concluded that since the evidence
shows that C1 did not threaten Complainant, the two are not similarly situated for purposes of
the removal action. In addition, the AJ noted that the evidence shows that S1 was aware that
Complainant had a history of violent behavior which made it reasonable for him to believe that
her latest threat was credible.

Moreover, the AJ concluded that S1 appeared credible at the hearing. Specifically, the AJ noted
that S1 displayed a “reasonably good memory of events; he had a good demeanor; and his
testimony was consistent with his prior testimony and the testimony of other witnesses.” In
addition, S1 found the police report to be credible and accurate, as well.

Based upon the totality of the record, the AJ concluded that Complainant failed to establish
pretext or that the discipline issued was motivated by discriminatory/retaliatory motives.

We agree with the AJ’s findings and conclusions. On appeal, Complainant points to the
arbitration decision that arose from her related grievance in which she received partial relief. In
that decision, the arbitrator found Complainant and C1 similarly situated with respect to the
removal action. However, we agree with the Agency that the arbitration decision is separate and
distinct and applies different standards of proof from the current EEO complaint.

The essential legal conclusion in this matter is that Complainant was not similarly situated to her
comparator (C1) because they did not engage in similar conduct. In reaching this conclusion, the
AJ noted that both employees acted inappropriately during their confrontation at the VFW, but
neither was disciplined for that conduct. Rather, Complainant alone made a viable threat
towards a coworker, and she was disciplined for that reason. Even assuming that Complainant
presented sufficient evidence of disparate treatment, there is insufficient evidence in the record to
show that such disparate treatment was motivated by discriminatory or retaliatory animus.

0120142743

6
CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final action which adopts the
AJ’s decision.

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

0120142743

7
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, Director
Office of Federal Operations

February 25, 2016
Date