Lonny C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 6, 2019

0120181057 (E.E.O.C. Jun. 6, 2019)

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

Lonny C.,1
Complainant,

v.

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

Appeal No. 0120181057

Agency No. 1J603003617

DECISION

On February 3, 2018, 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
January 3, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk, Level 6, at the Agency’s South Suburban Processing and Distribution Center facility in
Bedford Park, Illinois.

On July 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and sex (male) when, on March 23, 2017,
the Agency placed him in an off-duty status and, subsequently, on or around April 12, 2017,
issued him a Notice of Removal.

The Agency accepted the complaint and conducted an investigation, which revealed the
following pertinent facts.

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.
0120181057

2

Complainant alleged that the Agency placed him on an off-duty status because his supervisor
(Supervisor1) falsely alleged that he was physically threatening and confrontational.
Complainant attested that he was not physically threatening or confrontational and did not
exhibit any physical behavior that would cause Supervisor1 to fear him. Management informed
him that the Agency’s actions were because of his unacceptable conduct. Complainant asserted
that the Agency’s zero-tolerance policies provide for a prompt investigation of the facts and he
was not allowed to tell his facts.

A statement from Supervisor1 indicates that, at approximately 9:20 p.m. on March 23, 2017, he
noticed Complainant on his cell phone while working on machine #32. Complainant had been
previously informed that cell phone usage was not allowed on the floor. Supervisor1 approached
Complainant and addressed the situation. The note describes Complainant’s confrontational
language and physical actions of walking up to Supervisor1 with his chest less than an inch away
from Supervisor1 and his face no more than 2 inches away from Supervisor1. As Supervisor1
would back up, Complainant would step to close the distance. Supervisor felt “extremely
physically threatened.” He radioed for another supervisor (Supervisor2), but Complainant was no
longer at the machine.

A statement from Supervisor2 indicates that, on March 23, 2017, Supervisor1 called him on the
radio to come to machine 32. When he saw Supervisor1, he had a shocked look on his face and
told him that the guy that was on machine #32 “had got in his face when he told him to put his
cell phone up.” Supervisor1 told Supervisor2 that Supervisor1 had backed up twice and
Complainant “got right back in his face.” Complainant had left the machine and they could not
find him. Supervisor1 called a Manager, Distribution Operations (MDO1) and they went to the
office. MDO1 had Supervisor2 walk Complainant out of the building.

A statement from MDO1 indicates that, on March 23, 2017, Supervisor1 told her that he needed
to put Complainant out of the building. Supervisor1 described the incident and physically
demonstrated what had occurred. He stated that he felt physically threatened. MDO1 paged
Complainant to the office 3 times. When he came to the office, MDO1 told him that he needed to
leave the building while she investigated the incident with Supervisor1. Complainant denied the
incident. He appeared agitated and was becoming argumentative. She advised him to leave the
building calmly. MDO1 spoke to the Labor department for guidance. They decided to keep
Complainant out of the building until he could be interviewed. Based on this and the interview,
Supervisor1 decided to issue a Removal and MDO1 concurred.

Supervisor1, Supervisor2, and MDO1 attested to the incident as described in their statements.

A letter from the Agency, dated March 24, 2017 and signed by MDO1 and another Manager,
Distribution Operations (MDO2), indicates that Complainant was placed in an off-duty status,
without pay, beginning March 23, 2017, at approximately 9:30 p.m., pending further
investigation. The reason provided was the incident on March 23, 2017, when Supervisor1
approached Complainant about his cell phone usage on the workroom floor and Complainant
0120181057

3
became confrontational. Supervisor1 felt threatened by his physical behavior and feared
Complainant would cause bodily harm. The letter provides that retaining Complainant on duty
may result in him being injurious to self or others.

A report of the Pre-Discipline Interview indicates that Complainant was interviewed on April 4,
2017 relating to the March 23, 2017 incident. The nature of the incident was noted as “Conduct
Unbecoming of a Postal Employee.” The report indicates that Complainant denied being on his
cell phone and denied being confrontational or threatening. He repeatedly stated that he was not
confrontational or threatening. He added that he attempted to tell his side of the story but was
told by MDO1 to leave the building immediately.

The Notice of Removal, dated April 12, 2017 and signed by MDO2 (for Supervisor1) and
MDO1, indicates that Complainant was charged with unacceptable conduct and would be
removed from the Agency no sooner than 30 days from receipt of the Notice. It details the
incident on March 23, 2017, involving Complainant’s cell phone usage on the work floor,
Supervisor’s addressing the situation, and Complainant’s verbal statements and physical
behavior. It details the findings of the pre-disciplinary interview and notes the applicable Agency
policies, including obedience to orders, behavior and personal habits, violent and/or threatening
behavior, and the zero-tolerance policy. It notes that a Letter of Warning, dated August 9, 2016,
for Failure to Maintain a Regular Attendance Schedule was also considered.

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.

The instant appeal followed.

On appeal, Complainant asserts that the McDonnell Douglass structure, as applied in the final
Agency decision, is “dead as a doornail.” He argues for the application of a different legal
standard, asserting that “the amendment to Title VII in the Civil Rights Act 1991” changed the
law and overruled the “substantial factor causation standard.”

Complainant identifies a similarly situated female was treated differently. He asserts that he was
treated disparately because, as a male Afro-American, he is perceived as a greater threat to a
White male, as opposed to a female Afro-American. He doubts Supervisor1 would have felt
physically threatened by a female employee.

Complainant also asserts that Supervisor1 did not present anything to show that Complainant did
not conduct himself in a manner that did not reflect favorably on the Agency. There is nothing
substantiating Supervisor1’s allegations. He also questions why Supervisor1 would call
0120181057

4
Supervisor2, as opposed to the Agency police or a higher manager, if he felt threatened. He
asserts that management’s reasons are a pretext to discrimination.

The Agency has not submitted a statement or brief in response.

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”).

Complainant has alleged that the Agency treated him disparately in placing him in an off-duty
status and, subsequently, issuing a Notice of Removal. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the
agency has met its burden, the 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. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, his claim
ultimately fails as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. As discussed above, the Agency placed Complainant on off-duty status because of his
actions when the Agency’s management, Supervisor1, approached him about using a cell phone
on the work room floor. Complainant was confrontational and caused Supervisor1 to feel
physically threatened. The Agency’s management determined that Complainant should be placed
on off-duty status, pending an investigation. The Agency conducted a pre-disciplinary
investigation and Complainant was given an opportunity to tell his side of the story. The report
indicates that Complainant stated that he was not using his cell phone and, when questioned,
repeatedly stated that he was not confrontational or threatening. A review of the Agency’s policy
shows that there is a zero-tolerance policy for violent and/or threatening behavior and that
employees are expected to conduct themselves during and outside of working hours in a manner
that reflects favorably upon the Agency. While Complainant denies that the incident occurred,
the record is sufficient to find that it did occur. Although Complainant has alleged
0120181057

5
discrimination, he has not established by a preponderance of the evidence, that the legitimate,
non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination
or motivated by some unlawful discriminatory animus with respect to this claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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).
0120181057

6
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 6, 2019
Date