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

Equal Employment Opportunity Commission

Apr 5, 2019

0120180388 (E.E.O.C. Apr. 5, 2019)

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

Ronny S.,1
Complainant,

v.

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

Appeal No. 0120180388

Hearing No. 520201600597X

Agency No. 56000000216

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from an October 2, 2017
Final Agency Decision (“FAD”) concerning an 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 was employed by the Agency as
a Special Agent (“SA”), GS-11, at the Church Street Station in New York, New York.

On January 7, 2016, Complainant filed an EEO complaint alleging that he had been subjected to
disparate treatment and harassment by the Agency on the bases of religion (Jewish), race
(Jewish), and sex (male) when:

1. On October 9, 2015, he was issued a Notice of Proposed Removal dated October
2, 2015, and,

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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2. On November 10, 2015, and ongoing, he was placed in a non-pay / non-duty work
status (i.e. leave without pay or “LWOP”).

Complaint further alleged that he was subjected to disparate treatment and harassment on the
bases of religion, race, sex, and reprisal for engaging in protected EEO activity related to the
instant complaint when:

3. On December 28, 2015, upon his inquiry, the Agency failed to inform him that he
could apply for Federal Unemployment while in a LWOP status, and,

4. On March 3, 2016, he received notice that he had been terminated from his
position via a March 1, 2016 Letter of Decision, which upheld the terms of the
October 2, 2015 Notice of Proposed Removal.

The Agency dismissed Claims 1 and 3 on procedural grounds (with appeal rights), but accepted
Claims 2 and 4 for investigation. After its investigation, the Agency provided Complainant with
a copy of the report of investigation and notice of right to request a hearing before an Equal
Employment Opportunity Commission (“EEOC” or “the Commission”) Administrative Judge
(“AJ”). Complainant timely requested a hearing, but subsequently withdrew his request during
the pre-hearing stage. On August 28, 2017, the AJ remanded the matter back to the Agency
issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

As a Special Agent (“SA”), Complainant conducted internal criminal investigations, such as mail
“dumping” or mail theft. Investigations included identifying and interviewing witnesses,
reviewing surveillance footage and package records, and creating a report of investigation with
his findings. In instances where a preponderance of the evidence revealed that a crime had been
committed, Complainant was to notify the relevant authorities, provide evidence and avail
himself as a witness if necessary. Complainant’s first level supervisor (“S1”) (female, white,
Catholic) was the Assistant Special Agent in Charge, GS-14. Complainant also reported to the
Executive Special Agent in Charge, GS-15 (“S2”) (male, Hispanic, Catholic).

On May 1, 2015, S2 emailed the Agency’s OIG Special Inquiries Division (“SID”)/Internal
Affairs (“IA”). S1 and S2 had identified five investigations in which Complainant made arrests
based on misleading statements or despite lack of evidence. In addition, S1 alleged that her other
SAs reported not wanting to work with Complainant, but she was unsure if this was just due to
Complainant’s “quirky” personality (also described as “overzealous”). Team Leaders told S1 that
because of his conduct during investigations, Complainant had damaged OIG’s working
relationship with the New York Police Department (“NYPD”).

On May 4, 2015, Complainant met with S1 and S2, and was relieved of his badge and gun. S1,
having consulted with Employee Relations, advised Complainant that she was placing him on
paid administrative leave (“non-duty status”), pending the results of a SID Investigation.

On May 13, 2015, Complainant was allegedly “interrogated for 9.5 hours” with his counsel
present. Complainant noted all of the investigations at issue had been reviewed and approved by
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a supervisor. In addition, the first four investigations, approved and reviewed by a former
supervisor, occurred during or around his probationary period, contributing to his passing the
probationary period and the in-grade promotion he received shortly afterward. The fifth
investigation had been reviewed and approved by S1.

The October 2, 2015 Notice of Proposed Removal summarized five “Specifications” or
investigations that Complainant conducted where the SID ROI found Complainant engaged in
“Unprofessional Conduct.” Specifically, the proposed removal identified “Unprofessional
Conduct” under OIG Guide for Disciplinary Penalties including actions that are “disruptive,
criminal, dishonest, notoriously disgraceful, or immoral conduct of other conduct prejudicial to
the [Agency].” The proposed removal also found Complainant in violation of IGM 302.1.2.B,
requiring investigations to be conducted “in a diligent and complete manner” per the Department
of Justice (“DOJ”) and other established guidelines. For instance, evidence must be “gathered
and reported in an unbiased and independent manner…include[ing] exculpatory information.” In
addition, Complainant was found to have “compromised the reputation of this agency and the
Northeast Area Field Office in particular,” by among other things, casting doubt on the
credibility of his fellow SAs with local law enforcement, and opening the Agency up to liability
should the subjects of Complainant’s investigations take legal action. Complainant, through
counsel responded in writing on December 8, 2015, and, with Counsel present, responded orally
on December 9, 2015.

On October 14, 2015, Complainant was notified by letter that the Agency would be placing him
on “non-pay status” effective November 10, 2015. Complainant used the remainder of his leave,
which ran out on December 27, 2015. Complainant states that on December 28, 2015, he
contacted Employee Relations that day, asking how he could continue to be paid, and was not
informed that he could seek unemployment benefits. Complainant was on LWOP status until the
effective date of his termination, March 1, 2016.

The Deciding Official (“DO”) was a Deputy Special Agent in Charge, GS-15, (male, white,
Catholic) based in Massachusetts, outside Complainant’s chain of command. In issuing the
March 1, 2016 decision to uphold the proposed removal, DO consulted Employee Relations, and
relied on the SID ROI, submissions by S1 and S2, Agency policies, and Complainant’s written
and oral responses.2

2 While pursuing the instant complaint, Complainant filed an “Inspector General Section 109
Appeal,” with the Agency, challenging his March 1, 2016 removal, in a hearing held on June 28
and July 19, and 20, 2016 to determine whether the charge of “Unprofessional Conduct” was
supported by the preponderance of the evidence. On August 16, 2016, the Hearing Officer, in
accordance with IGM 109.1.3H(4)(h) issued a proposed decision, finding 3 out of the 5
specifications were supported by a preponderance of the evidence, and that the “nature of the
misrepresentations made in the three cases which supported the sustained specifications is
serious, regardless of the role played by others in [Complainant’s] chain of command. The USPS
OIG is right to treat [Complainant’s] conduct as a very serious matter.” On August 16, 016, the
Area Special Agent in Charge issued a final determination adopting the proposed decision, but
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The Agency’s FAD concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. 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) (“EEO MD-110”) (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”).

Claim 1

When a complaint is filed on a proposed action and the agency subsequently proceeds with the
action, the action is considered to have merged with the proposal. See Siegel v. Dep’t of
Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep’t of the
Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). Thus, the October 2, 2015 Proposed
Termination in Claim 1 and the March 1, 2016 Letter of Decision upholding Complainant’s
termination in Claim 4 have merged into a single claim. In other words, for purposes of this
analysis, “Claim 4” encompasses Complainant’s allegation in Claim 1.

Claim 3

The Commission has long held that an employee cannot use the EEO complaint process to lodge
a collateral attack on another forum's proceeding. See Kleinman v. United States Postal Serv.,
EEOC Request No. 05940585 (Sept. 22, 1994) and Wills v. Dep’t of Def., EEOC Request No.
05970596 (Jul. 30, 1998). The unemployment process is “another forum’s proceeding.” See
Pietrewicz v. United States Postal Serv., EEOC Appeal No. 01994448 (Oct. 27, 1999)
(complainant’s allegation that the Agency prevented him from receiving unemployment
compensation by failing to provide the necessary paperwork and providing false information was
an impermissible attack on the state’s unemployment processing agency) citing Lau v. Nat'l
Credit Union Administration, EEOC Request No. 05950037 (Mar. 18, 1996).

We have previously determined that claims such as this one, where the alleged impact of an
Agency’s action prior to Complainant pursuing unemployment’s benefits is at issue, still
constitutes a collateral attack. See Pietrewicz; Complainant v. United States Postal Serv., EEOC

finding 4 out of the 5 specifications were supported by a preponderance of the evidence. She
sustained Complainant’s removal, finding “misconduct as serious as this outweighs any
mitigating factors.” See also EEOC Appeal No. 0120171228 (May 23, 2017).
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Request No. 05A01065 (Aug. 15, 2002) (finding that without more, claims concerning a delay in
submitting paperwork to another adjudicatory process, or submitting incomplete or faulty
paperwork, constitute a collateral attack on the other process, and should not be adjudicated as an
EEO claim). The proper forum for a complainant to have raised a challenge to decisions made
relating to the unemployment process is through that forum itself.

The Agency properly dismissed Claim 3 for failure to state a claim in accordance with 29 C.F.R.
§1614.107(a)(1), as it alleges a collateral attack on another forum’s proceeding.

Claims 2 and 4

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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 Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

For purposes of establishing pretext, comparative evidence relating to other employees is
considered relevant when they are “similarly situated.” See Anderson v. Dep’t of Treasury,
EEOC Appeal No. 01A22092 (Mar. 13, 2003). In other words, all relevant aspects of the
employees' work situation are identical or nearly identical, i.e., the employees report to the same
supervisor, perform the same job function, work during the same time periods, and, in instances
where the Agency is responding to “problem conduct” (here, the “unprofessional conduct”
described in the SID ROI and the October 2, 2015 NOPR) engaged in the same conduct. See
Stewart v. Dep’t of Defense, EEOC Appeal No. 01A02890 (Jun. 27, 2001); Jones v. United
States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13, 2000); See
Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied,
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EEOC Request No. 05A20020 (Dec. 28, 2002).

None of Complainant’s proffered comparators engaged in the same “problem conduct” that the
Agency cited as its legitimate, nondiscriminatory reason for placing Complainant on “non-pay”
status effective November 10, 2015 (Claim 2) and for his removal effective March 1, 2015
(Claim 4). Significantly, Complainant also fails to provide comparator evidence in support of his
argument that he was singled out for additional scrutiny due to his membership in protected
classes when S1 and S2 contacted SID/IA to initiate the investigation, which ultimately led to
Complainant’s termination. For instance, S1 and S2 did not receive the same complaints from
team leaders about Complainant’s proffered comparators as they did for Complainant, nor were
they concerned that their other SAs were detrimental to OIG’s working relationship with the
NYPD. Prior to contacting SID/IA about Complainant, the record indicates that S1 and S2
reviewed all of Complainant’s investigations since he started working for the Agency in January
2014, causing them to identify the five investigations they believed evinced unprofessional
behavior.

Complainant also has not established that from a business judgment standpoint, the personnel
decisions in Claims 2 and 4 were unreasonable.

For Claim 2, the Agency’s legitimate, nondiscriminatory reason was that it acted in accordance
with its internal policies and procedures under the Inspector General Manual (“IGM”). S1
testified that she was advised by the OIG Employee Relations Analyst, GS-13, (“ER”) on May 4,
2015 to enter [Complainant’s] leave into the system as "administrative leave," per the IGM.
Under IGM 104.10.2(D), an employee may be placed on administrative leave “pending the
resolution of an ongoing investigation or inquiry.” The October 2, 2015 NOPR signified the
resolution of the SID Investigation, and, as a “proposed adverse action,” it established a new
time frame for Complainant’s paid administrative leave. IGM 109.1.3 (F) provides that an
employee provided with a proposed adverse action:

Shall remain in a pay status, either on the job or on administrative leave during
the notice period, at the option of the proposing official, in consultation with
Employee Relations. The notice period must be at least 30 calendar days… If an
employee requests an extension of time to respond to the proposed adverse action,
and that extension takes the notice period beyond 30 calendar days, the employee
may be placed in a non-pay, non-duty status after the initial 30-day notice period.

Consistent with both ER’s advice and IGM Part 109, the NOPR states that Complainant’s
proposed removal will occur “no sooner than 30 calendar days from the date you receive this
letter.” The “Statement of Rights” provided in the NOPR further informs Complainant that:
“currently you are on administrative leave [non-duty pay status]. You will remain on
administrative leave during this 30 day calendar notice period.” When Complainant requested
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an extension to respond to the NOPR, DO consulted with ER and exercised his discretion not to
extend Complainant’s paid administrative leave.

An October 14, 2015 letter to Complainant from DO, granting Complainant’s extension request,
clarifies that that the final day of the “Notice Period,” triggered by Complainant’s receipt of the
NOPR, as well as Complainant’s final day of paid administrative leave would be November 9,
2015, in compliance with the 30 day minimum required under IGM 109.1.3(F). ER testified that
typically, when an OIG employee receives an NOPR, “we place them on administrative leave for
30 days and sometimes longer until the deciding official makes a decision.” ER explained that
for the instant case, “since Complainant had already been on administrative leave for
approximately 5.5 months, he wanted everyone to be clear on when the administrative leave
would end and when the non-pay status would begin.” Complainant was permitted to exhaust his
remaining leave as he responded to the NOPR, and did not go on LWOP status until December
27, 2019. Complainant offers no evidence that the Agency’s policies and procedures were
applied in a discriminatory manner, as pretext for discrimination.

For Claim 4, the Agency’s legitimate, nondiscriminatory reason for Complainant’s removal is
that he engaged in “unprofessional contact.” The SID report of investigation (“ROI”) found that
“during at least five investigations, [Complainant] made false and/or misleading statements,
failed to conduct thorough and independent investigations, and failed to report exculpatory
evidence.” As previously discussed, the “Unprofessional Conduct,” violated Agency and OIG
policies, including, IGM 302.1.2.B, and compromised the Agency’s integrity both locally and
with its employees (two of the five investigations resulted arrests and and charges of grand
larceny against letter carriers, based on misleading information and incomplete investigations).
In the March 1, 2016 Letter of Decision, DO also takes testimony by Complainant and S1 into
consideration. He emphasizes the specialized nature of the SA position, stating that it “demands
a high level of integrity and the ability to exercise good Judgment, [and finding Complainant]
demonstrated neither.” DO describes his impression of Complainant’s lack of truthfulness during
the oral response, and lack of concern or apology to the employees who were impacted by his
actions. DO supports his by applying the “Douglas Factors” to the facts of Complainant’s case,
and the IGM 109.2 Guide for Disciplinary Penalties, which allows removal as a penalty for
unprofessional conduct.

On appeal, Complainant offers no argument or evidence (including the extensive transcripts from
a hearing when he (unsuccessfully) appealed DO’s March 1, 2016 Letter of Decision with the
Agency) that would indicate his removal from the Agency was discriminatory. We also find no
evidence to the extent that Complainant believes he was singled out to be the subject of a SID
investigation because of his sex, race, and religion. The record contains testimony by S1 and S2,
as well as contemporaneous emails that support their legitimate, nondiscriminatory reason
concern over employee comments about Complainant’s work, for contacting SID/IA.

For both Claims 2 and 4, the Agency acted within its managerial discretion, consistent with its
legitimate, nondiscriminatory reasons. Complainant’s arguments fail to establish that the
Agency’s explanations were pretext for discriminatory motive.
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Given that Complainant cannot overcome the Agency’s legitimate nondiscriminatory reasons for
its actions, we decline to analyze Complainant’s harassment allegation for the same claims.

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.
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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

April 5, 2019
Date