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

Equal Employment Opportunity Commission

May 25, 2016

0120140452 (E.E.O.C. May. 25, 2016)

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

Valentine P.,1
Complainant,

v.

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

Appeal No. 0120140452

Hearing No. 530-2012-00257X

Agency No. 1C-081-0020-12

DECISION

Complainant filed an appeal from an Agency’s final order dated September 26, 2013, finding
no discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint, filed on April 5, 2012, Complainant alleged discrimination based on race
(Caucasian) and sex (male) when on November 29, 2011, he was placed on emergency
suspension without pay and subsequently issued a notice of removal for improper conduct
dated January 24, 2012, and effective February 29, 2012. The record indicates that at the
conclusion of the investigation, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). The AJ, after a hearing, issued a
decision on September 19, 2013, finding no discrimination, which was implemented by the
Agency in its final order.
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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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, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was a
Tour 3 General Expeditor, PS-07, at the Agency’s Bellmawr Processing and Distribution
Center, Bellmawr, New Jersey.

Complainant’s supervisor stated that on November 29, 2011, he placed Complainant on
emergency suspension at issue under the instruction of Complainant’s manager. Specifically,
the supervisor indicated that on the incident date, the office had a service award ceremony and
Complainant was invited to celebrate Complainant’s 35-year milestone in his career. After the
ceremony, several employees reported to the manager that Complainant was stealing multiple
plates of food and throwing rolls into the trash can. As a result of Complainant’s conduct,
there was not enough food for the second service ceremony which had to be canceled. Also,
Complainant failed to report to his work location for over one hour after the ceremony.
Complainant was subsequently issued the notice of removal at issue for his improper conduct,
unauthorized absence from work location, and pilferage of postal property.

The AJ stated that even though he did believe Complainant’s testimony that he did not take
more than a total of six hoagie slices or sandwiches with him after the award ceremony,
described above, he nevertheless failed to show that there were any similarly situated
employees not in his protected groups who were treated differently under similar
circumstances. The record indicates that Complainant subsequently filed a grievance
concerning his removal and as a result, he was returned to work. After a review of the record,
we find that Complainant failed to show that the Agency’s proffered reasons were pretext.
Upon review, we find that the AJ’s factual findings of no discriminatory intent are supported
by substantial evidence in the record.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the
AJ’s decision is supported by substantial evidence.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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 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.

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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

May 25, 2016
Date