EEOC Appeal 2020000603

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alan F.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020000603
Agency No. 1G-701-0003-19
DECISION
On August 14, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 16, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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
During the period at issue, Complainant worked as a Maintenance Mechanic at the Agency’s New
Orleans Processing and Distribution Center ("New Orleans P&DC") in New Orleans, Louisiana.
On January 9, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on sex (male) and age (over 40) when, on September
4, 2018, he was placed on Emergency Placement, and subsequently, on or around October 10,
2018, he was issued a Notice of Removal.2
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.
2 As a result of Complainant’s grievance regarding the Emergency Placement, the Agency agreed
to expunge the Emergency Placement from Complainant’s records.

2020000603	2
After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.
In its July 16, 2019 final decision, the Agency found no discrimination based on the evidence
developed during the investigation.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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
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. 	See Texas Department of
Community 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
Center 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. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Complainant asserted that on September 4, 2018, he was placed on Emergency Placement, and
subsequently, on or around October 10, 2018, he was issued a Notice of Removal.
The Manager Maintenance Operations (male, over 40) stated that during the relevant period, he
was Complainant’s manager. 	He stated that on September 4, 2018, he placed Complainant on
Emergency Placement for pilferage. 	Specifically, the manager stated that Complainant left the
premises while still “on the clock.”

2020000603	3
The record contains a copy of the Emergency Placement dated September 5, 2018, in which the
manager placed Complainant on notice that he was being placed in an off-duty (without pay) status
effective September 4, 2108. He also notified Complainant that “a further decision shall be made
as to whether or not discipline will be issued to you for the alleged misconduct that decision will
be forthcoming in the near future.”
The Manager stated that on October 2, 2018, he issued Complainant a Notice of Removal.3
Specifically, the manager explained that he had previously made Complainant aware of the Postal
Service’s expectations as it relates to adhering to Office Rule 6 concerning not leaving the premises
while on the clock unless specifically authorized by the unit supervisor. The manager provided
Complainant “with the opportunity to correct this deficiency, but you elected to leave the building
while on the clock again.” He determined that Complainant’s conduct was unacceptable.
The Manager stated that on the same day, September 4, 2018, he conducted an Investigative
Interview with Complainant and his representative. 	He asked Complainant why he exited the
employee parking lot while still on the clock around 8:50 a.m., and Complainant responded that
he moved his car from the 4 th floor to the 1st floor. 	The record reflects that Complainant then
stopped the investigative interview. The Manager further stated that on September 18, 2018, he
afforded Complainant a second opportunity to provide him with an explanation. 	He stated that
when he asked Complainant “is it correct that during [your] initial investigative interview on
Tuesday, September 4, 2018, you said, ‘I moved from the 4th floor to the 1st floor of the customer
parking lot.’ You replied, ‘You have my statement. 	I don’t have anything to add.’ 	For the
remaining questions, [he] responded, ‘I’m not answering that!’”
The Manager stated that Complainant’s lack of cooperation during the investigative interview and
his continuing to leave the premises while on the clock “demonstrate [he] cannot be honest,
reliable, trustworthy, courteous and of good character and reputation and must be removed from
the Postal Service.”
In addition, the Manager noted that Complainant violated the following sections of the Employee
and Labor Relations Manual: 665.11 “Loyalty,” 665.13 “Discharge of Duties,” 665.15 “Obedience
to Orders,” 665.16 “Behavior & Personal Habits,” and 665.3 “Cooperation in Investigations.” The
Manager stated that Complainant’s actions “appear to have been intentional and constitute gross
and habitual neglect of [his] respective duties. This behavior has caused me to lose confidence in
[his] ability to properly perform [his] duties.”
3 The record reflects that on October 10, 2018, the manager issued an “Administrative Error –
Notice of Removal. 	Therein, the manager noted that the October 2, 2018 Notice of Removal
contained an administrative error. 	Specifically, the Notice informed Complainant that it was a
“Proposed” Notice of Removal and informed him of MSPB appeal rights. 	He noted that it had
been determined that Complainant was not a veteran preference eligible employee and therefore
was not entitled to MSPB rights. Furthermore, the manager stated that the initial Notice is being
sent to him again with the MSPB information omitted. The record reflects that nothing has been
changed or altered with regard to the October 2, 2018 Notice of Removal.

2020000603	4
The Lead Manager of Maintenance Operations (male, over 40) stated although it was not his
decision, he concurred with the manager’s decision. He confirmed that Complainant was issued a
Notice of Removal because he left the building while on the clock and refused to participate in the
investigative interview relating to his actions.
After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that the responsible management officials’ proffered legitimate,
non-discriminatory reasons for the disputed actions were actually pretext designed to mask
discrimination. Beyond his bare assertions, Complainant provided no evidence that his sex or age
played any role in these events.
CONCLUSION
We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of
the evidence of record does not establish that discrimination occurred.
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.

2020000603	5
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
September 14, 2020
Date