Ayanna B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Office of the Inspector General), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120172067 (E.E.O.C. Dec. 18, 2018)

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

Ayanna B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Office of the Inspector General),
Agency.

Appeal No. 0120172067

Hearing No. 531-2016-00309XX

Agency No. 56000000815

DECISION

On May 26, 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
April 19, 2017, final decision (FAD) concerning her 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., and 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 worked as a Special Agent, GS-
13, at the Agency’s Office of the Inspector General facility in Capital Heights, Maryland.

On December 15, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), color (Black),
and age (43) when:

1. On July 6, 2015, Complainant was placed on indefinite suspension.

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.
0120172067

2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The Agency’s decision concluded that Complainant failed to prove that the Agency subjected her
to discrimination as alleged. Specifically, the Agency found that Complainant failed to establish
a prima facie case because she failed to identify similarly situated employees from outside her
protected bases who were treated differently. The Agency found that the comparators identified
by Complainant were either not similarly situated because they engaged in conduct that differed
from hers, or, in the case of one comparator, the comparator received harsher treatment than
Complainant did and thus Complainant could not show she was treated worse. The Agency
further found that, assuming Complainant established a prima facie case, the Agency articulated
a legitimate, nondiscriminatory reason for its action, namely that Complainant was placed on
suspension because she lost her security clearance following a background check that revealed
possible fraud, and Complainant failed to show that such a reason was a pretext to mask
discrimination.

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, 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”).

Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
0120172067

3
Finally, it is the complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis 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 the complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
Complainant established her prima facie case of discrimination. We next find that the Agency
articulated a legitimate, nondiscriminatory reason for its action in the form of the April 28, 2015
letter of proposed suspension and the July 6, 2015 notice of indefinite suspension which noted
that, pursuant to a routine background check, Complainant’s security clearance was not renewed
and Complainant could not be reassigned to another position because all of the positions in the
facility required a security clearance.

The burden next shifts to Complainant to establish, by a preponderance of the evidence, that the
Agency’s articulated reason is a pretext to mask discrimination, or otherwise establish that
discrimination occurred. See Hicks; Burdine; McDonnell Douglas. Complainant averred that the
outside firm hired to perform the background check concluded that Complainant had rented an
apartment in the District of Columbia despite living in the state of Maryland in order to allow her
children to attend public school in the District, as well as having a history of not meeting her
financial obligations. Complainant further averred that:

My security clearance was suspended based on an unreliable statement from an
outside investigator. I never was advised there was an issue with my background.
It is normal and customary for security specialist and HR personnel to contact
employees when there are discrepancies in a background reinvestigation. I
worked for this agency for 16 years and was a top performer every year with no
performance or discipline issues. This agency never once attempted to interview
me until 7 months later. The agency and the appealing agency [sic] also received
a written response surrounding the facts. After I retained an attorney the
Inspection Service stated they were waiting for the results of DC Investigation.
The investigator that performed the investigation repeatedly made assumptions
from interviewing witnesses and also one witness he did not interview but
reported that he interviewed [name omitted] but that never happened. Postal OIG
never addressed these issues. I filed a complaint against [the investigator] of the . .
. Investigating agency. He also conducted my background in 2009, which some of
the statements in the interviews are not factual.

The Agency on appeal, however, presents a copy of a Residency Investigation Report (Report)
by the District of Columbia Public Schools, Office of the Deputy Chancellor for Operations,
0120172067

4
Office of Compliance, dated February 27, 2015. The Report cites abundant evidence to support
its conclusion that Complainant was not a resident of the District of Columbia while enrolling
her two children in D.C. public schools free of charge on the basis of D.C, residency. The
Agency presents additional documentation showing that D.C Public schools subsequently
charged Complainant for tuition reimbursement for the school year 2014-2015 for both of her
children. We note that Complainant does not allege that the District of Columbia Public Schools
Office harbored discriminatory animus against her race, sex, color, or age. Thus, even assuming
Complainant’s claim that the outside investigator who conducted the background check was
“unreliable,” the Report establishes that the underlying allegations against Complainant were
true, or at a minimum, that the Agency had good faith reasons to believe they were true.

Complainant next argues that other similarly situated coworkers outside of her protected bases
did not have their security clearances revoked for infractions that were similar, or worse, than
hers. Complainant’s first comparator (CW1: Caucasian, male, white, 29 years old) was allegedly
charged with a DUI, hit and run, and assault but, according to Complainant, he was initially
place on administrative leave without pay but was subsequently placed on administrative leave
with pay and did not lose his security clearance. A second comparator (CW2: Caucasian, male,
white, 36) was:

[A]rrested and charged assault [sic] and may have been reduced to lesser charge. I
do not know all the details of the altercation but [he] allegedly had his service
weapon with him at the time and was drinking while carrying a service weapon. . .
.. He allegedly pulled out his badge during the incident. [He] was not issued any
discipline and nor was his security clearance revoked.

Complainant identified a third comparator (CW3: Caucasian, female, white, 45 years old) who
“allege[d] her neighbor was watching her house while she was out of town and her service
weapon was stolen from her home. [She] was given the opportunity to explain her circumstances
and was not placed out on indefinite suspension or administrative leave when she told an
incident occurred.” Finally, Complainant also references other comparators who engaged in
various forms of misconduct, but who she alleges were treated differently.

The Assistant Special Agent in Charge (ASAC: Caucasian, female, white, 50 years old) averred
that with regard to CW1, contrary to Complainant’s claim, after being placed on administrative
leave without pay, he was removed from the Agency on March 24, 2016, unlike Complainant
who was not removed. ASAC further averred that CW3 did receive discipline for losing her
firearm, but her security clearance was not revoked because “[CW3]’s incident was not
comparable to [Complainant’s] situation.”

Following a review of the record we find that Complainant has not met her burden of
establishing that the Agency’s articulated reason for its action was a pretext. The record shows
that CW1 was actually punished more severely than Complainant and hence she cannot use him
as an example of someone who was treated better.
0120172067

5
The other two comparators identified by Complainant engaged in conduct that did not reflect
adversely on their trustworthiness and honesty, and hence she has not shown that the difference
in treatment was based on her protected bases. A fourth comparator later identified by
Complainant is not a valid comparator because she shares all of Complainant’s protected bases,
she allegedly committed theft, a more serious offense, and she was removed from the Agency as
a result, meaning she was treated more severely than Complainant.

While Complainant maintains that white employees are generally treated better and that “[the
Assistant Inspector General for Investigations (AIG: Caucasian, white, male, 43 years old)] has a
career path for all of his white friends,” she has not met her burden of establishing, by a
preponderance of the evidence, that the Agency’s articulated reason for its action is a pretext to
mask discrimination.

Finally, we note that Complainant resigned from the Agency effective January 31, 2016. To the
extent Complainant is alleging constructive discharge we note that the Commission has
established three elements which a complainant must prove to substantiate a claim of
constructive discharge: (1) a reasonable person in the complainant's position would have found
the working conditions intolerable; (2) the conduct that constituted discrimination against the
complainant created the intolerable working conditions; and (3) the complainant's involuntary
resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans
Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice,
EEOC Request No. 05940688 (Apr. 13, 1995). Because we find that the loss of Complainant’s
clearance was not discriminatory, Complainant cannot show that the second element has been
met and hence a claim of constructive discharge must fail.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not met her burden of establishing,
by a preponderance of the evidence, that discrimination occurred and we AFFIRM the FAD.

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.
0120172067

6
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).

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.
0120172067

7
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

December 18, 2018
Date