Clement M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120180682 (E.E.O.C. Apr. 26, 2019)

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

Clement M.,1
Complainant,

v.

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

Appeal No. 0120180682

Agency No. 1E501000417

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, from a November 16, 2017 Final Agency
Decision (“FAD”) concerning an equal employment opportunity (“EEO”) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Supervisor, Distribution Operations, EAS-17 at the Des Moines Processing & Distribution
Center (“P&DC”) in Des Moines, Iowa.

On April 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (46) when: on December 28, 2016, he was issued a Letter of
Warning (“LOW”). 2

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 also alleged harassment/hostile work environment, which the Agency dismissed
in its May 24, 2017 Letter of Acceptance, and Complainant has not raised on appeal.
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At the conclusion of its investigation, the Agency provided Complainant with a copy of the
report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an
EEOC Administrative Judge (“AJ”). When Complainant did not request a hearing within the
time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

Complainant’s first level supervisor (“S1,” age 29) was a Manager, Distribution Operations
(“MDO”), and his second level supervisor (“S2,” age 59) was a Senior MDO. On the relevant
date, Complainant also reported to the Acting MDO on his Tour (“S3,” age 37), who was also
Complainant’s fellow EAS-17 Supervisor.

On December 28, 2016, S1 issued the Letter of Warning (“LOW”) to Complainant with S2 as
concurring official. The LOW identified two incidents on December 5, 2016. First, Complainant
altered the PS Form 1723 to reflect an incorrect start date for a craft employee (non-
management) going into a level 17 detail outside his chain of command, and to change a
supervisor’s days off. The PS Form 1723 is a payroll form for craft (non-management)
employees, which is also provided to the Union as a record for determining bid positions. An
EAS-17 Supervisor, such as Complainant, cannot complete payroll forms for other supervisors at
the same level and higher, nor is he or she supposed to complete a PS Form 1723 for an
employee that does not report to them. Second, he provided instructions related to transportation
over the phone to the Cedar Rapids P&DC, placing the facility at risk for a deviation and delay
in mail delivery.

According to the LOW, Complainant’s actions violated the Employee and Labor Relations
Manual (“ELM”) Provisions 665.13 Discharge of Duties and 665.15 Obedience to Orders. In
three unsuccessful appeals of the LOW, Complainant strenuously argued that his actions
complied with both provisions because he was acting under the instructions of S3. Although S3
testifies that he explained to S1 that Complainant was acting under his direction, S1 denied
Complainant’s appeal. Specifically, S1 reasoned that Complainant “should have never touched
the 1723 for employees going into a Level 17 detail or change days off for fellow supervisors”
and that “although [Complainant] previously worked in transportation, [he] should have left the
final decision making to the transportation employee and not overstep [his] bounds as an
operation supervisor.”

The FAD concluded that Complainant failed to prove that the Agency subjected him 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
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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
evidence that the Agency’s actions were motivated by discrimination. U.S. 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).

An employer has the discretion to determine how best to manage its operations and may make
decisions on any basis except a basis that is unlawful under the discrimination statutes. Furnco;
Nix v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th Cir. 1984). An employer is
entitled to make its own business judgments. The reasonableness of the employer's decision
may, of course, be probative of whether it is pretext. The trier of fact must understand that the
focus is to be on the employer's motivation, not its business judgment. Loeb v. Textron, Inc.,
600 F.2d 1003, 1012 n.6 (1st Cir. 1979).

Complainant has failed to sufficiently show that the agency's action was unreasonable in terms of
business judgment. Complainant does not deny taking the actions identified in the LOW, but
instead argues that they were not in violation of the ELM. Despite Complainant’s years of
experience working at the Agency, and S3’s corroborating testimony, it ultimately appears that
Complainant acted outside the scope of his authority and/or position, as S1, not S3 is his
supervisor. Thus, without more, Complainant's argument that the agency's articulated reason was
a pretext for discrimination is unproven. S1’s decision to issue the LOW is not so unreasonable
to give rise to an inference of discrimination.
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Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find the record devoid of comparator evidence, or any other
indication that Complainant’s protected status played any role in the LOW.

CONCLUSION

Accordingly, we AFFIRM the Agency’s finding that Complainant did not establish
discrimination as alleged.

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.
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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
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

April 26, 2019
Date