Brenton W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

May 24, 2017

0120162078 (E.E.O.C. May. 24, 2017)

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

Brenton W.,1
Complainant,

v.

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

Appeal Nos. 0120160603,
0120162078

Hearing Nos. 480-2014-00679X,
480-2015-00408X

Agency Nos. 4F-913-0014-14,
4F-913-0022-15

DECISION

On November 20, 2015, and March 11, 2016, Complainant filed appeals, pursuant to 29 C.F.R. §
1614.403(a), from the Agency’s October 22, 2015, and March 4, 2016, final orders concerning
his equal employment opportunity (EEO) complaints 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq. In accordance with 29 C.F.R. § 1614.606, the Commission exercises its discretion
and consolidates the above-referenced appeals for decision. For the following reasons, the
Commission AFFIRMS the Agency’s final orders.

BACKGROUND

At the time of events giving rise to these complaints, Complainant worked as a Letter Carrier at
the Santa Maria Post Office, located in Santa Maria, California. On March 3, 2014, and January
16, 2015, Complainant filed EEO complaints alleging that the Agency discriminated against him

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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on the bases of race (East Asian), national origin (Chinese), age (61), and in reprisal for prior
protected EEO activity. In Agency Complaint No. 4F-913-0022-15/EEOC Hearing No. 480-
2015-00408X, he alleged that he was discriminated against when:

(1) on September 27, 2013, his supervisor placed him on emergency off-duty status
without pay; and

(2) on October 4 and October 30, 2013, his request for placement in a detail position was
denied.

In Agency Complaint No. 4F-913-0014-14/EEOC Hearing No. 480-2014-00679X, he alleged
that he was discriminated against when:

(3) on November 4, 2013, he received a Notice of Removal.

At the conclusion of the investigations, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing for each complaint.

The same AJ was assigned to both of Complainant’s hearing requests. Over Complainant's
objections, the AJ granted the Agency’s motions for a decision without a hearing on September
8, 2015, and February 4, 2016. The Agency subsequently issued final orders adopting the AJ’s
findings that Complainant failed to prove discrimination as alleged.

FACTUAL BACKGROUND

On September 26, 2013, a customer (CU) on Complainant's delivery route met with
Complainant’s second-line supervisor (S2) at the Santa Maria Post Office. CU claimed that on
September 21, 2013, a Postal Service vehicle operated by Complainant was in an accident with
CU’s vehicle, resulting in a substantial amount of damage to CU’s vehicle. CU had prepared a
written account of the accident and subsequent events. CU claimed that immediately after the
accident, Complainant asked CU not to call the police because Complainant could get fired.
Complainant then offered to pay for the damage himself and gave CU his driver’s license.
Complainant told CU to keep the driver’s license until Complainant paid him. CU also stated
that on September 24, 2013, he and his son went to Complainant’s house to present Complainant
with an estimate for repairs to CU’s vehicle. CU stated that Complainant asked him to wait an
extra day so Complainant could obtain his own estimate. Complainant and CU agreed to meet
again the next day at a restaurant. CU stated that when he and Complainant met on September
25, 2013, Complainant told him that he was making a false claim and that he could go to jail.
According to CU, Complainant denied causing the damage to CU's vehicle, but offered him
$50.00. CU subsequently went to Complainant’s house to return Complainant’s driver’s license.

On the evening of September 25, 2013, Complainant sent a text message to his first-line
supervisor (S1) that stated in part, “[i]t’s a very tough day for me...there’s one guy cut in front of
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me trying to blame me hit his car....” S1 stated that when he read the message, he believed that
Complainant was describing an incident that happened to Complainant in Complainant’s own
vehicle. When CU reported the above information to S2, CU also showed her copies of
Complainant’s driver’s license, Agency identification, and personal insurance information that
CU had obtained from Complainant.

S2 directed S1 and the 204-B Supervisor (S0) to conduct an investigation of CU’s allegations.
Agency managers immediately took pictures of CU’s vehicle and checked the postal vehicle that
Complainant had driven on September 21, 2013, for damage. S1 noticed there was a transfer of
white paint on the postal vehicle. When Complainant reported for duty on September 27, 2013,
S1 issued him a notice that he was immediately being placed on emergency off-duty status
without pay until further notice. The reason for the notice was Complainant’s failure to report to
management that he had been in an accident on September 21, 2013, in violation of Agency rules
or regulations.

On September 30, 2013, S0 conducted an investigative interview with Complainant regarding
CU’s claims. Complainant’s version of events differed substantially from CU’s version.
Complainant denied that he was in an accident involving CU’s vehicle and denied being aware
of any contact at all between the vehicle he was driving and CU’s vehicle. Complainant stated
that on September 21, 2013, CU stopped Complainant while Complainant was delivering mail
and pointed at black marks on his vehicle. Complainant claimed that he told CU that it was dirt.
Nevertheless, Complainant acknowledged that he showed CU his driver’s license and Agency
identification and arranged to meet with him on September 23, 2013, at Complainant’s house.
Also on September 21, 2013, Complainant provided his personal insurance information to CU.
Complainant stated that he attempted to resolve CU’s claim because it was Complainant’s duty
to answer all inquiries of customers on his route.

Despite Complainant’s acknowledgement that he agreed to meet with CU at his house, when CU
arrived at Complainant’s house on September 24, 2013, Complainant told him that he should not
come to his house. Complainant stated that earlier in the day on September 24, 2013, he showed
pictures of CU’s vehicle to “a guy on [Complainant’s] route” who Complainant refused to
identify. Complainant stated that the guy told Complainant that the cost of repairs to the vehicle
was less than $50.00. Complainant disclosed this to CU, but denied offering CU $50.00.
Complainant also submitted a written statement to S0 on October 1, 2013.

Throughout both his oral responses and written statement, Complainant repeatedly denied being
in an accident on September 21, 2013, or causing damage to CU’s vehicle. Based on the
statements provided by CU and Complainant and by the Agency’s inspection of both vehicles,
S1 determined that CU’s account of the events was credible and consistent with the actions of a
person who believed that he was in an accident. Specifically, S1 cited CU’s immediate actions
to notify Complainant of the accident and damage to CU’s vehicle. CU then obtained
Complainant’s driver’s license, insurance information, and an estimate for repairs. He asked
Complainant to pay for the damages. When Complainant refused, CU met with S2 the next day
and provided her with a detailed account of the events surrounding the accident. Moreover, the
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Agency’s inspection of the vehicles and re-creation of the accident were consistent with CU’s
account.

S1 also determined that Complainant’s account lacked credibility. For example, S1 determined
that Complainant’s denial of being in an accident was inconsistent with Complainant’s assertion
that he told the customer that Complainant was going to call his supervisor. In addition,
Complainant voluntarily surrendering his driver’s license and personal insurance information to
CU, demanding CU’s driver’s license and insurance information, and taking pictures of CU’s
vehicle, and showing those pictures to a repair person were inconsistent with Complainant’s
contention that he was not involved in an accident.

In or around July 2013, Complainant applied for a detail assignment to a Field Sales
Representative position located in Industry, California, in the Santa Ana District. In early
October 2013, the Manager, Shipping and Mailing Solutions, notified Complainant that he had
been selected for a detail assignment to a Field Sales Representative position in Industry,
California. Since the detail was in another district, Complainant needed the approval of S2. On
October 2, 2013, Complainant sent an email to S2 informing her of his selection and requesting
her approval.

On October 4, 2013, S2 sent a reply email denying Complainant’s request. The reason for the
denial was that Complainant had been placed in an emergency off-duty without pay status for
failing to report the September 21, 2013, accident, and the investigation of the accident was still
on-going. On October 1, 2013, Complainant sent an email to the Chief Human Resources Officer
(CH), asking for his assistance in securing approval for Complainant to be placed in the detail
assignment. CH referred the email to the Human Resources Manager (HR) for a response. On
October 30, 2013, HR sent a letter to Complainant explaining that any decision regarding the
assignment would be made by local management and would depend upon the results of the
investigation.

Thereafter, S1 concluded that the preponderance of the evidence established that Complainant
had indeed been in an accident with the customer on September 21, 2013. S1 also concluded
that Complainant not only failed to report the accident to Agency managers, but that
Complainant attempted to conceal discovery of the accident by attempting to negotiate a
resolution with the customer. These actions prevented the Agency from conducting its own
investigation of the accident in a timely manner. Based on these factors and based on
Complainant’s lack of remorse, as evidenced by his continued denial that an accident took place,
S1 determined that Complainant should be terminated from his employment with the Agency.

On November 4, 2013, S1 issued a Notice of Removal to Complainant based on Complainant’s
conduct regarding the September 21, 2013 accident. S2 concurred with S1’s determination.
Complainant filed a grievance concerning his removal, which culminated in an arbitration
hearing convened on February 10, 2015. Witnesses, including Complainant, gave testimony
under oath, and both parties were afforded a full opportunity to present evidence and argument
and to examine and cross-examine witnesses. In her written decision issued on March 24, 2015,
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the arbitrator made a factual finding that Complainant and CU had been involved in a vehicular
accident on September 21, 2013.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

The AJ concluded that Complainant was collaterally estopped from re-litigating the issue of
whether he was involved in an accident on September 21, 2013. According to the doctrine of
collateral estoppel “once an issue is actually and necessarily determined by a court of competent
jurisdiction, that determination is conclusive in subsequent suits based on a different cause of
action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153
(1979) (citing Parklane Hosiery Co., Inc v. Shore, 439 U.S. 322, 326 n. 5 (1979)). A
determination as to whether it is appropriate to apply the doctrine includes the following: (1)
whether the issues presented in the present litigation were in substance the same as those
resolved in the prior litigation; (2) whether controlling facts or legal principles have changed
significantly since the prior judgment; and, (3) whether other special circumstances warrant an
exception to the normal rules of preclusion. See Snead v. Pension Ben. Guar. Corp., EEOC
Request Nos. 05970577 and 05990239 (March 25, 1999) (citing Montana, 440 U.S. at 154-55).

We agree with the AJ’s conclusion that a central and necessary determination in Complainant’s
arbitration hearing was whether he had in fact been involved in a vehicular accident on
September 21, 2013. The arbitrator determined that he had. In addition, the AJ noted that there
had been no significant changes in controlling facts or legal principles since the arbitrator
rendered her decision, and there were no special circumstances precluding application of
collateral estoppel. Accordingly, we agree with the AJ’s conclusion that Complainant is
collaterally estopped from re-litigating the issue of whether he was involved in an accident on
the date in question. As such the AJ properly determined that there were no material facts in
dispute and that summary judgment was appropriate.

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We also agree with the AJ, that even assuming that Complainant established a prima facie case
of discrimination or retaliation, he has failed to establish that the Agency’s legitimate, non-
discriminatory/retaliatory explanation is a pretext for discrimination or retaliation. We note that
the Agency’s explanation for all three allegations is that Complainant failed to report an accident
in which he was involved and then attempted to conceal the accident from management officials.
S1 and S2 pointed to Agency rules and regulations and the collective bargaining agreement for
their decision to place Complainant in off-duty status. The record shows that Article 16.7 of the
national collective bargaining agreement provided that an employee could be immediately placed
on off-duty status without pay based on an allegation of failure to observe safety rules and
regulations or in cases where retaining the employee on duty may result in damage to Agency
property or loss of mail or funds. Additionally, the employee could be maintained on off-duty
status until disposition of the employee’s case.

Complainant argues both that he was not in an accident and that he did in fact report the incident
in his text message to S1. Complainant’s first argument has been factually resolved due to the
arbitration decision. The latter argument fails as well in that we find that the text message on its
face was insufficient to inform S1 that Complainant had been in an accident involving his postal
vehicle on September 21, 2013.

Complainant further argues that the Agency's proffered reason is a pretext because Complainant
was not given an opportunity to respond to the allegation that he had been in an accident prior to
being placed on emergency off-duty status. However, we agree with the AJ that the applicable
collective bargaining agreement provision permitted the Agency to place an employee on
emergency off-duty status without first giving the employee an opportunity to respond to the
alleged misconduct. In addition, the Agency did not place Complainant off-duty because he had
been in an accident, but because he did not report the accident to the Agency and rather tried to
conceal it. As such, the Agency determined that keeping Complainant on duty could result in
damage to Agency property or loss of funds. Complainant did not allege, and there is no
evidence in the record, that the Agency failed to apply this provision of the collective bargaining
agreement to similarly-situated employees who had been accused of misconduct. Also, while
Complainant argues that he was qualified for the detail position, he fails to refute the Agency’s
purported reason for its denial (i.e., the pending investigation into his alleged misconduct).
Accordingly, we agree with the AJ in concluding that the record is devoid of sufficient evidence
to allow a reasonable trier of fact to conclude that the Agency’s proffered reasons were a pretext
for discrimination or retaliation. We find that the record is devoid of evidence of discriminatory
or retaliatory animus on the part of any responsible management official.

CONCLUSION

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Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final orders that adopt the AJ’s decisions finding
that Complainant failed to prove discrimination/retaliation as alleged.2

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).

2 Contrary to Complainant’s assertion on appeal, the failure of the AJ to consolidate the
complaints before rendering a decision on the merits had no impact on the conclusions reached.
We find that the collective evidence produced in both complaints supports the AJ’s conclusions
rendered in each decision. In addition, contrary to Complainant’s assertion on appeal, we find
nothing inappropriate with the sua sponte request by the AJ for the Agency to submit a motion
for summary judgment after the original deadline for such motion had passed. We also disagree
with Complainant and find insufficient evidence in the record to show that similarly situated
comparison employees were treated more favorably than Complainant.
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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

May 24, 2017
Date