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

Equal Employment Opportunity Commission

Jun 7, 2019

0120180800 (E.E.O.C. Jun. 7, 2019)

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

Cleo S.,1
Complainant,

v.

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

Appeal No. 0120180800

Agency No. 4F956008017

DECISION

On December 30, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 30, 2017, final decision concerning his 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 decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the
Agency’s Lathrop Post Office facility in Lathrop, California. On June 23, 2017, Complainant filed
an EEO complaint, which he amended on July 21, 2017, alleging that the Agency discriminated
against him on the bases of race (Hispanic), sex (male), and color (brown) when:

1. On April 21, 2017, he was issued a Letter of Warning for Unacceptable conduct;
2. On April 21, 2017, he was issued a Notice of 7-Day No Time Off Suspension for
Unsatisfactory Work Performance/Unsafe Operation of a Postal Vehicle; and
3. On June 23, 2017, he was issued a Letter of Warning.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission 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 final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

As to all three claims, the Agency found that Complainant had not established a prima facie case
of discrimination because Complainant did not produce any evidence that the employer treated a
similarly situated employee who was not a member of his protected classes differently. The
Agency also found that Complainant presented no other evidence from which a discriminatory
inference could be drawn. However, assuming Complainant had established a prima facie case,
the Agency still concluded that Complainant’s discrimination claims failed.

With respect to Claim 1, the Agency found that the record indicated that the Postmaster issued the
LOW because, on April 4, she observed Complainant kick a 775 tub containing mail and walk out
of the room. The Postmaster had explained that when Complainant came onto the workroom floor,
he became upset when he noticed that RedPlum cases had been put up for other carriers’ routes,
but not his. She said that Complainant was heard saying, “This isn’t right” before he kicked the
mail bucket and walked away, saying “I can’t take this, I’m taking a break.” The Postmaster stated
that she followed Complainant to the parking lot and informed him that his kicking the bucket was
a sign of aggression that would not be tolerated. He told her the circumstances were not fair and
she assured him that she would address the carriers regarding the RedPlum cases but that he needed
to focus on preparing for and completing his own route. The Postmaster stated that Complainant
returned, put his head down on the table, but then began casing the route. A few minutes later,
however, he informed the Postmaster he was not going to make his noon time departure and would
just return the route. She said she explained that was not an option. She returned later to ask how
he was doing, and he reported that he was fine. The Postmaster said she left to attend a meeting
around 11:30 am, but received a call from Complainant stating that he was sick and requesting that
she send him to the doctor. The Postmaster said she denied Complainant’s request and told him
that he could go to the doctor on his own. She reminded him that he needed to finish his route and
do it safely. She averred that he said he would deliver the mail and hung up.

The Agency ruled that the white, female employee Complainant identified as a comparator who
also requested to go home was not similarly situated. The Agency reasoned that the alleged
comparator had not engaged in conduct warranting disciplinary action at the time of the request as
Complainant had. The Agency then stated, that assuming a prima facie case existed, the
Postmaster articulated a legitimate, nondiscriminatory reason for the April 21 LOW, since she
stated that she issued the LOW because she found his behavior in kicking the bucket to be
unacceptable and in violation of certain provisions in the Employee and Labor Relations Manual
(ELM) which Complainant failed to show was pretextual.

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With respect to Claim 2, the record shows that on April 4, the Postmaster said that when she
returned to the post office, she drove over to Complainant’s route to check on him. On arrival, she

observed that Complainant was driving without wearing a seatbelt. She stated that Complainant
had been previously instructed about needing to wear his seatbelt during a Stand-Up talk on March
30, 2017, and that he had been required to attend a Driver Improvement Training on January 7,
2017, after being observed driving with the vehicle door open and not wearing his seat belt on
January 3. Documents in the record support the Postmaster’s version of events. The Postmaster
stated that she conducted an investigative interview on April 7, and considered several sections of
the ELM, and two Post Office handbooks in determining his discipline. The Customer Service
Manager (CSM) at the Modesto Hudson Station reviewed and concurred with the Postmaster’s
discipline because Agency policies regarding the failure to follow instructions and working
unsafely applied to this issue. The CSM knew that Complainant was male but did not know what
his race or color was since he worked at a different facility and had never met Complainant.

Regarding Claim 3, the Agency found that the Postmaster’s discipline was legitimate and
nondiscriminatory. According to the record, Complainant reportedly engaged in a “rude and loud”
verbal dispute with a business customer about the lack of access to the mailbox because of parked
cars and his unwillingness to leave his vehicle to deliver mail. The next day, when the Postmaster
visited the business to investigate the matter, she learned that Complainant had returned later on
the day of the incident in his personal vehicle to continue the discussion, which the business owner
and his employee considered inappropriate. The Postmaster explained that she felt the LOW was
warranted because on May 24, 2017, she had instructed Complainant to dismount to make
deliveries at this specific business if the mailbox was blocked by cars because the business owner
had previously reported that the carrier had driven by without stopping or delivering the mail. She
further explained that she had cautioned Complainant about his behavior during the LOW she
issued on April 27. The Postmaster said she conducted an Investigative Interview during which
Complainant claimed that the customer was rude and unprofessional to him, but she decided based
on certain provisions in the ELM, discipline was warranted.

This 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, 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”). We
find that the investigation was appropriate and sufficiently thorough.

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On appeal, Complainant asserts that he wanted a hearing. We find that the record shows that
Complainant was informed of his right to a hearing but there is no indication in the record
indicating that Complainant requested a hearing. The Commission finds no reason to disturb the

Agency’s finding of no discrimination. Complainant has failed to show that the Agency’s reasons
for the actions in this complaint were a pretext for discrimination and failed to show by a
preponderance of the evidence that any Agency action at issue was motivated by discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding that Complainant was not subjected to 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).
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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

June 7, 2019
Date