Robert E. Young v. MEGAN J. BRENNAN, Postmaster General, United States Postal Service

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 23, 2018 *
Decided November 1, 2018
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-1790
ROBERT E. YOUNG,
Plaintiff-Appellant,
v.
MEGAN J. BRENNAN,
Postmaster General,
United States Postal Service,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 15 CV 10633
Charles R. Norgle,
Judge.
O R D E R
Robert Young contends that the United States Postal Service discriminated
against him based on his race, sex, and age by demoting him from a supervisor to a
“part-time flexible” carrier. The district court granted the Postal Service’s motion for
summary judgment, determining that a reasonable factfinder could not conclude that
Young’s race, sex, or age motivated his demotion. We affirm.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Young, who is 53 years old and black, had worked as a supervisor for the Postal
Service for about a decade until an incident arose with regard to his timekeeping of one
subordinate employee. Management discovered in 2010 that, over the course of several
months, Young had been improperly inputting hours on a subordinate employee’s time
card while that employee was absent from work without leave. As a supervisor, Young
was responsible for maintaining accurate timekeeping records and approving them to
authorize payment.
Management investigated the issue through three pre-disciplinary interviews
with Young. During these meetings, Young admitted that he input entries for the
subordinate employee without verifying the employee’s attendance. He explained that
he wanted to avoid system errors that occur when entries are missing on an employee’s
time sheet. When asked if he knew the Postal Service’s procedure concerning employee
time cards, Young acknowledged that he should have entered the employee’s time on a
Postal Service 1260 form (“PS-1260”). (This form logs the instances when a time-card
entry is missing and an employee manually inputs the time into the timekeeping system
instead of electronically through the employee’s badge upon entry into the facility.)
After the investigation, management sent Young a “Notice of Proposed Adverse
Action–Reduction in Grade and Pay,” recommending a demotion from supervisor of
distributions to part-time carrier with a corresponding reduction in pay. The notice
outlined seven instances between December 2009 and April 2010 when Young manually
input time-card entries for an employee—entering time for the employee’s lunch break
and the end of the employee’s shift—when in fact the employee was absent without
leave. The notice also charged Young with violating provisions of the employee
handbook, notably those pertaining to a supervisor’s responsibility to oversee
employees’ access to time cards and to ensure that employees clock in and out
according to their assigned schedule.
After a failed attempt at mediation, management issued Young a “Letter of
Decision,” approving the demotion. Management pointed to multiple incidents in
which Young approved payment for an employee who was absent without leave.
Young then filed a complaint with the Equal Employment Opportunity
Commission, alleging discrimination based on age (because despite being over forty, he
was “the youngest male supervisor”) and sex (because the supervisors were more
tolerant of female employees and gave them more “leeway”). But the EEOC closed his

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No. 18-1790 Page 3
complaint after an investigation determined that the evidence did not establish that
Young had experienced the alleged discrimination.
Young later launched a “mixed case” appeal to the Merit Systems Protection
Board, maintaining that he was demoted based on age and sex discrimination; he also
asserted, for the first time, that race discrimination motivated his demotion. (A “mixed
case” appeal occurs when a federal employee complains of a personnel action that is
serious enough to appeal to the Merit Board and also alleges that the action was based
on discrimination. See 29 C.F.R. § 1614.302(a)(2); Kloeckner v. Solis, 568 U.S. 41, 44 (2012)).
The Merit Board conducted a hearing on the merits and upheld the Postal Service’s
decision.
Young then proceeded to federal court. He argued that the Postal Service failed
to prove that he violated its policies because he merely “input” entries in the
employee’s time card but did not “adjust” the entries, as he was charged with doing.
And the Merit Board’s decision was erroneous, he contended, because it relied on an
employee manual that post-dated his demotion. On his discrimination claim, he
maintained, relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that the
Postal Service discriminated against him because other similarly situated supervisors
also improperly entered time cards for employees but did not suffer an adverse
employment action. He also brought new claims asserting wire fraud and violations of
the Illinois Rules of Professional Responsibility (he charged the Postal Service’s counsel
with fraud and ethical misconduct for submitting, before the Merit Board, the incorrect
employee manual).
The district court granted the Postal Service’s motion for summary judgment. On
Young’s challenge to the Merit Board’s ruling, the court concluded that the Merit Board
had substantial evidence for its decision because Young improperly “adjusted” the time
cards of a subordinate employee, altering the entries from ones that generated an
attendance error to time cards that had no error. This conduct also violated specified
provisions of the employee handbook—provisions that required supervisors to ensure
accurate employee records—to substantiate any demotion. On his discrimination claim,
the court determined that Young failed to present evidence to permit a reasonable
factfinder to conclude that Young’s protected status motivated his demotion. See Ortiz
v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). Nor could he show that a
similarly situated employee outside of his protected class was treated more favorably.
Finally, the court concluded, without elaboration, that Young lacked standing for his

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claims of wire fraud and violations of professional responsibility because the relevant
statute and disciplinary rules provide no private right of action.
On appeal, Young first disputes the court’s handling of his discrimination claims
and insists that he provided sufficient evidence of similarly situated employees under
the McDonnell Douglas framework. He argues that other similarly situated supervisors
also manually input inaccurate entries for employees’ time cards, often to correct lunch
break inputs, but were not demoted.
As the district court explained, however, Young did not support his
discrimination claims with sufficient evidence. First, Young cannot identify a
comparator who input inaccurate information on a time sheet to allow an employee to
get paid for an unauthorized absence, much less a comparator who did so on repeated
occasions. To determine whether two employees have engaged in similar misconduct,
the proper inquiry is whether their conduct is of “comparable seriousness.” Coleman
v. Donahoe, 667 F.3d 835, 850 (7th Cir. 2012). But of the supervisors whom Young
identifies as similarly situated, only one input an entry to close out a subordinate
employee’s shift; this entry was to disallow unauthorized overtime, and not, as in
Young’s case, to authorize payment repeatedly for work the employee did not perform.
See Reed v. Freedom Mortg. Corp., 869 F.3d 543, 550 (7th Cir. 2017) (employee with single
attendance violation not comparable to plaintiff with many documented violations).
Young next argues that the district court erred in determining that there was
insufficient evidence to challenge the Merit Board’s decision sustaining his demotion.
He disputes the Postal Service’s contention that he was required to submit to
management a PS-1260 form whenever he manually input time-card entries. Further, he
argues that the Merit Board’s ruling is flawed because it relied on a new employee
manual requiring supervisors to complete the PS-1260 form; this manual, he says, did
not exist until years after he was demoted.
We review the Merit Board’s decision to sustain Young’s demotion for
substantial evidence, see 5 U.S.C. § 7703; Abrams v. Soc. Sec. Admin., 703 F.3d 538, 542
(Fed. Cir. 2012), and we agree with the district court that this standard has been met.
The Board reached its decision after the Postal Service conducted a thorough
investigation, carrying out three pre-disciplinary interviews with Young and giving him
an opportunity to respond to the charge that his failure to enter accurate timekeeping
entries for his employees violated company policies. The Postal Service appropriately
justified its decision by explaining that Young’s conduct violated specific provisions of

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the employee handbook requiring that supervisors ensure that employees “complete
their duties and clock out promptly” and verify that employees make accurate entries
on their time cards.
Finally, Young challenges the court’s dismissal—on standing grounds—of his
claims of wire fraud and violations of professional responsibility. He maintains that he
suffered a “distinct and palpable injury” that is “fairly traceable to the challenged
conduct”: essentially, that the Merit Board upheld his demotion based on the Postal
Service’s use of the wrong employee manual. Yet as the district court determined,
Young lacks standing because neither claim provides a private right of action. See Scheib
v. Grant, 22 F.3d 149, 156 (7th Cir. 1994) (professional responsibility); Morganroth &
Morganroth v. DeLorean, 123 F.3d 374, 386 (6th Cir. 1997) (wire fraud). In any event, as
we have explained, the Postal Service’s decision to demote him rested on his failure to
properly monitor an absent employee and was not based on the erroneously submitted
manual.
We have considered Young’s remaining arguments, and none has merit.
AFFIRMED

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