Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 18, 2015

01-2014-0961-0500 (E.E.O.C. Sep. 18, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120140961

Hearing No. 480-2012-00138X

Agency No. 4F-926-0182-11

DECISION

Complainant filed an appeal from the Agency’s November 25, 2013, final order concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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 City Letter
Carrier at the Agency’s work facility in Anaheim, California.

On August 2, 2011, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the basis of his race (Caucasian) when he received a Notice of
Removal on June 2, 2011.

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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on September 9, 2013.

0120140961

2
The AJ found that no discrimination occurred.1

The AJ stated that on January 25, 2011,
Complainant ate at the restaurant Taqueria El Sancho. The AJ noted that later that day,
Complainant submitted a PS Form 3971 (No Lunch) which he signed and dated indicating that
he did not take a lunch break that day. The owner of the restaurant notified the Agency’s
Office of Inspector General that he believed that Complainant stole money from the tip jar on
January 25, 2011. The Office of Inspector General initiated an investigation and interviewed
Complainant. Complainant was suspended due to evidence that he stole money from a
restaurant while on his lunch break. The Office of Inspector General issued a report
concerning the incident. The report indicated that the restaurant owner submitted video
surveillance footage showing Complainant reaching into the tip jar and removing money.
The Notice of Removal issued to Complainant cited him for Unacceptable Conduct with regard
to the theft of the tip money and Falsification of PS Form 3971 (No Lunch). The Agency
stated that Complainant spent twenty-eight minutes at the restaurant. The AJ noted that
Complainant asserted that he placed a tip in the jar, decided not to leave a tip and reached into
the jar to remove the money he had placed there. Complainant further claimed that he missed
two breaks on January 25, 2011, and therefore he used the time from both breaks to eat at the
restaurant. Complainant asserted that he spent fourteen minutes at the restaurant rather than
twenty-eight minutes. According to the Agency, Complainant took his allotted morning break
earlier that day and that therefore the time spent at the restaurant constituted a lunch break.

The AJ found that Complainant failed to establish a prima facie case of race and color
discrimination. The AJ stated that although Complainant identified eleven Hispanic employees
who he claimed violated Agency policy or were arrested and treated more favorably than him,
he did not allege that any of these employees committed theft. The AJ observed that the
official who issued the Notice of Removal to Complainant, the Customer Services Manager,
also issued Notices of Removal to Hispanic employees whose misconduct was not as severe as
Complainant’s misconduct. The AJ referenced two Notices of Removal that were for being
absent without leave and for unsafe driving, respectively. The AJ reasoned that the fact that
the Custom Services Manager issued removal notices to Hispanic employees for misconduct
that was not as significant as that of Complainant undermines Complainant’s argument that he
held a bias against him based on race or color.

The AJ noted that Complainant provided copies of background checks, photographs and
newspaper articles suggesting that there are Hispanic employees at the facility who have
criminal records. However, the AJ pointed out that Complainant did not provide evidence
indicating that these alleged criminal incidents occurred while these individuals were employed
by the Agency. The AJ also recognized that Complainant identified several alleged instances

1 Complainant claimed discrimination only on the basis of race in his complaint. However, the
AJ observed that Complainant repeatedly raised a claim of color discrimination in the
investigative record. Thus, the AJ addressed both race and color as alleged bases of
discrimination.

0120140961

3
where Caucasian employees were disciplined, but Hispanic employees were not, even though
they committed similar violations. The AJ, however, observed that there is no evidence that
the Customer Services Manager or Complainant’s Supervisor had the authority to discipline
any of the employees.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he did not falsify his time records. Complainant states
that he did not take his regular morning break and instead took a break for the fourteen
minutes he was in the restaurant. Complainant claims that he filled out a request for no lunch
that day before he left the office to deliver his route. Complainant argues that although the
AJ’s decision states that the Customer Services Manager decided to terminate him, it was the
Postmaster who previously stated that he made the decision to terminate him based on the
information in the Office of the Inspector General’s report.

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. For the reasons set
forth below, we conclude that this case does not present a genuine issue of material fact
requiring a hearing.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
0120140961

4
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

We shall assume arguendo that Complainant has set forth a prima facie case of race and color
discrimination. The Agency stated that Complainant was issued a Notice of Removal based on
Complainant stealing from the tip jar at the restaurant and his falsification of the form in which
he indicated he had not taken a lunch break that day. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its issuance of the Notice of Removal.

Complainant argues that the Agency’s explanation for his removal is pretext intended to hide
discriminatory motivation. Complainant denies that he stole the tip money from the jar in the
restaurant. Complainant claims that he initially placed money in the tip jar and subsequently
changed his mind and took the money out of the jar. Moreover, Complainant argues that
Hispanic employees who commit infractions receive more favorable treatment than Caucasian
employees. With regard to the charge that he falsified a form indicating he did not take a
lunch break on January 25, 2011, Complainant contends that his time at the restaurant was not
his lunch time but rather his break. According to Complainant, he did not take his station
break at his regular time because he was assisting on another route. Complainant maintains he
was at the restaurant for fourteen minutes rather than twenty-eight minutes.

Upon review of the record, we discern no persuasive evidence to refute the Agency’s assertion
that Complainant committed theft. The restaurant camera captured Complainant looking
around and then placing his hand in the tip jar and pulling out an unknown amount of money.
Complainant’s explanation that he placed money in the jar and then changed his mind and
decided to retrieve his money is not credible. The Agency maintains that theft is unacceptable
conduct for its carriers and that removal was warranted. We observe that the Postmaster stated
that three Hispanic employees were removed in the past five years for either embezzlement or
theft. As for the alleged falsification of PS Form 3971 (No Lunch), Agency officials maintain
that they were unaware that Complainant gave up his station break to assist on another route on
January 25, 2011, and that they believed his time at the restaurant constituted a lunch. The
Agency pointed out that Complainant ordered food at the restaurant, sat down to eat it and took
longer than the ordinary break time. We find that Complainant has not established that the
Agency’s explanation was pretext intended to mask discriminatory intent. There is no
indication that Complainant’s race or color was a motivating factor in the issuance of the
Notice of Removal.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.
0120140961

5

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 file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

0120140961

6
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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton
Carlton M. Hadden, Director
Office of Federal Operations

September 18, 2015
Date