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

Equal Employment Opportunity Commission

Mar 15, 2019

0120170289 (E.E.O.C. Mar. 15, 2019)

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

Lenard H.,1
Complainant,

v.

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

Appeal No. 0120170289

Hearing Nos. 480-2015-00715X & 550-2016-00029X

Agency Nos. 4F926011915 & 4F926003215

DECISION

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 September 24, 2016, 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 Mail Processing
Clerk, Level 6, in the Business Mail Entry Unit (BMEU) at the Agency’s Orange Main Post
Office facility in Orange, California.

In June 2011, U.S. Postal Inspection Service (USPIS) informed the Agency’s Office of the
Inspector General (OIG) of an allegation that employees at the Orange Main Post Office BMEU
had not properly verified mail received from Advantage Mailing, Inc. (Advantage). Advantage
was a third-party mailing service, permitted by the Agency, that offered services to their

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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customers including addressing, applying postage, mail sorting, and transportation. The
improperly verified mail resulted in a loss of approximately $12,636,681.36 in revenue to the
Agency between January 2010 and June 2011. Approximately $763,788.35 of this loss is for
mailings in which Complainant is listed as the verifying employee. These mailings occurred
between approximately June 18, 2010 and May 5, 2011.

An investigation by the USPIS revealed Advantage avoided paying proper postage for some
mailings by falsifying Postal Service Forms 8125 claiming to have paid postage when no postage
was paid and/or by decreasing its obligation to pay postage by claiming to have used pre-
cancelled or metered postage when no such postage was paid. More specifically, it was alleged
that Complainant and a Bulk Mail Technician did not properly verify mail received from
Advantage. The Bulk Mail Technician in question retired from the Agency in January 2013,
prior to OIG’s investigation.

On February 19, 2014, an agent with the OIG and a Postal Inspector interviewed Complainant
regarding his work processing Advantage mailings. Complainant denied that he purposely
falsified Advantage’s bulk mailings. Through the investigation, OIG learned Advantage would
reprint missing forms to be stamped by postal employees, including Complainant. Complainant
would re-stamp the forms without verifying the paperwork because he said it was too much work
to go through all the original paperwork to make sure the reprinted forms were valid.
Complainant stated the Agency was understaffed and overburdened with mail to be processed.
Complainant admitted he did not watch Advantage employees load the trucks after he verified it,
but he would seal it after it was loaded. Complainant did not think it was wrong to let Advantage
employees stamp the paperwork or bring him samples.

Complainant stated when a destination post office would call and say the form was missing for
Advantage’s mail, Complainant admitted he would get a new copy from Advantage which he
would back date or round date. Complainant stated he would not check the system to verify or
try to find the original form he signed. He admitted he knew it was a violation of policy to stamp
“lost” forms, but he believed it was not a big deal as he assumed Advantage just lost the
paperwork.

Additionally, Complainant admitted he had accepted a $1,500 loan from an Advantage
employee, $2,000 from Advantage’s CEO for Complainant’s triathlon expenses, and wore an
Advantage logo in the triathlon. Complainant admitted he never repaid Advantage’s CEO for the
triathlon expenses. Complainant denied he had ethics training or was violating the Agency’s
ethics policies because Advantage never asked him to falsify the mail.

Complainant’s interview and information received from other Advantage and Agency employees
involved in the investigation findings were memorialized in a final report by OIG issued on
September 24, 2014. As a part of the investigation, OIG reviewed emails between Complainant,
the Bulk Mail Technician, and Advantage employees. The report found Complainant did not
always follow proper procedures for verifying Advantage's mailings which caused the Agency to
lose revenue. Specifically, allowing Advantage employees to stamp the paperwork or pick
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sample mail pieces for him was not proper procedure. In addition, Complainant stamped new
copies of forms that Advantage employees said they lost for mailings he already cleared without
verifying the forms were properly paid for. By failing to properly verify the mailings, the
investigation found Complainant created opportunities for Advantage to avoid paying the
required postage resulting in a loss of revenue for the Postal Service.

On October 14, 2014, Complainant’s supervisor (S1) issued Complainant a Notice of Emergency
Off-Duty Status. The Notice informed Complainant that on October 8, 2014, local management
was notified by the OIG that he had failed to follow established procedures and did not properly
verify mail received from Advantage. The Notice stated his failure to comply with procedures
resulted in an estimated loss of income to the Agency. Per the National Agreement, an employee
may be immediately placed on Emergency Placement where an allegation involves loss of mail
or funds.

On December 29, 2014, Complainant filed a complaint alleging the Agency discriminated
against him based on sex (male) when on October 14, 2014, he was put on Emergency Placement
in an Off-Duty Status without pay.

On May 21, 2015, Complainant filed a second complaint alleging that the Agency discriminated
against him on the bases of race (unspecified), sex (male), and reprisal for prior protected EEO
activity when on March 23, 2015, he was issued a Notice of Removal for Unacceptable Conduct.

The Notice of Removal informed Complainant that he was removed from service with the
Agency for unacceptable conduct. The Notice of Removal cited as a basis evidence presented to
Complainant during interviews with him on January 8, 2015 and February 3, 2015, as well as his
responses to the evidence. Over the course of those two interviews, Complainant was presented
with evidence of specific mailings verified by Complainant, belonging to Advantage, which
accounted for a total of $763,788.35 in lost revenue from Complainant’s mistakes in postage.
The Notice stated Complainant’s unacceptable conduct violated the rules and regulations of the
Agency, including sections on loyalty, discharging of duties, behavior and personal habits2, mail
entry financial responsibilities, and verification procedures.

At the conclusion of the investigation into both complaints, 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
requested a hearing in both cases but subsequently withdrew his requests. The AJ consolidated
the cases and remanded the case to the Agency for the issuance of a final Agency decision
pursuant to 29 C.F.R. § 1614.110(b). The Agency then issued a decision concluding that

2 During the course of the OIG’s investigation, Complainant was found to be improperly using
his government computer and email account for personal business, including dating websites.
Complainant was informed his usage of government property for personal matters was in
violation of the rules and unacceptable conduct of an Agency employee.
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Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed.

We note that the Agency has previously dismissed a claim regarding a notice of indebtedness
(the notice was later withdrawn) for failure to state a claim. Complainant has not challenged the
dismissal of this claim on appeal and we shall not address that claim in this decision.

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”).

In the instant case, the Agency found that Complainant failed to establish that he was subjected
to discrimination. Generally, claims of disparate treatment are examined under the analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). In a disparate treatment case, a prima
facie case of discrimination based on sex many be done by Complainant's showing that he is in a
protected class, and was treated less favorably than other, similarly situated employees outside
his protected class. Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir.
1875). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).

We find that assuming, arguendo, Complainant could establish a prima facie case of
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Complainant failed to establish by a preponderance of the evidence that the Agency’s
reasons were a pretext for unlawful discrimination. Additionally, Complainant has failed
establish that similarly situated persons were treated differently. Complainant listed two female
coworkers who were not disciplined as evidence of the Agency’s discriminatory animus towards
him. S1 disputed his claim that these two individuals were treated more favorably and stated
there was never any evidence that they had contributed to loss of postal funds like Complainant.
The Postmaster for Orange Main Post Office reiterated S1’s contention, adding that one of the
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female individuals was not stationed at Complainant’s facility and did not hold the same job title
or perform the same job functions as Complainant. The other female individual did have the
same job title, but no evidence was ever presented that she engaged in the same conduct as
Complainant. We agree with the Agency’s decision that the evidence does not establish that
Complainant was similarly situated with any other Mail Processing Clerk.

CONCLUSION

We AFFIRM the Agency’s decision finding no 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.
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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

March 15, 2019
Date