Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jun 21, 2013

0120113730 (E.E.O.C. Jun. 21, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120113730

Hearing No. 560-2009-00265X

Agency No. 4G-730-00322-09

DECISION

On July 29, 2011, Complainant filed an appeal from the Agency’s final order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Sales and
Services Associate at an Agency post office in Oklahoma City, Oklahoma. On May 15, 2009,
Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against her on the bases of her race (African-American) and in reprisal for prior protected
activity when:

1. On January 7, 2009, Complainant was given an investigative interview; and

2. On January 27, 2009, Complainant was issued a Letter of Warning for Failure to
Secure Postal Property.

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 EEOC
0120113730

2
Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing
on May 10, 2011 and issued a decision on June 21, 2011.1

In her decision, the AJ found the following facts. Complainant’s normal job duties included
closing the vault door and locking it; locking the chains on the back door; ensuring that all the
mail was placed on the truck; and since she was usually the last one in the office, she made
sure the unit was closed and the front door locked.

On December 22, 2008, Complainant locked the vault door and then realized that her blank
money orders were not in the vault. Complainant testified that she placed her blank money
orders in the window counter drawer and locked the drawer with a key. Complainant stated
that she left the key in the lock because she was not allowed to take Agency property home.
Complainant acknowledged that she did not re-open the vault to place the money orders there
because she did not know the combination code. Complainant admitted that she had received
the code from a coworker but that she did not have it with her because she did not usually need
to open the vault.

Upon Complainant’s return to work after her Christmas vacation, she discovered that the
money orders were missing. Complainant learned that her Supervisor (Caucasian) had the
money orders. According to Complainant, in a subsequent interaction with her Supervisor, he
told her that “My people are higher than your people.” The Supervisor testified that he
responded in such fashion after Complainant stated to him that she was going to contact some
people in higher ranks to deal with him.

The Agency conducted an investigative interview because Complainant had not adequately
secured her blank money orders before leaving the facility. During the investigative interview,
Complainant was asked about the money orders and her use of Christmas leave. Complainant
received a fourteen-day suspension for failure to secure the money orders and for being absent
without leave on Christmas Eve. The suspension was subsequently reduced to a Letter of
Warning pursuant to the grievance process.

The Manager of Customer Service, also Caucasian, testified that clerks are responsible for
having the vault combination and that if a clerk does not know it, she should contact her
Supervisor and obtain the combination. According to the Manager, if the combination cannot
be obtained, then the clerk should lock her money orders in a secure container. The Manager
testified that it is unacceptable for a clerk to place her blank money orders in the counter
drawer with the key in the keyhole because the money orders are not secure. The Supervisor
testified that he had spoken to Complainant prior to the incident at issue about securing her
money drawer after she left the key in the drawer while at lunch. The Supervisor testified that
race was not a factor in his treatment of Complainant. The Supervisor testified that his ex-wife
and the children he had with her are African-American and that he is the assistant pastor in an
African-American church.

1 At the hearing, Complainant withdrew her claim of reprisal.
0120113730

3

The AJ assumed arguendo that Complainant established a prima facie case of race
discrimination. The AJ found that the Agency articulated a legitimate, nondiscriminatory
reason for the investigative interview and Letter of Warning based on Complainant’s failure to
secure her blank money orders. The AJ concluded that leaving the key in the keyhole
amounted to a failure to secure the money orders. The AJ found that Complainant failed to
prove that the Agency’s explanation was false or unworthy of belief. The AJ found that
Complainant presented no evidence of any other similarly situated employees, not of her race,
who left blank money orders in a drawer with a key who were treated more favorably. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Supervisor did not discuss with her his expectations
of her. Complainant maintains that she complied with the rule that states items such as blank
money orders must be stored in the main vault or security container that affords the best
available protection. Complainant claims that her actions secured the money orders.
Complainant notes that all of the money orders she placed in the lockable file drawer were
accounted for, and none were missing. Complainant states that she perceived her Supervisor’s
statement about his people being higher than her people as being racist.

In response, the Agency asserts that Complainant could have called her Supervisor for the
vault combination or for advice on what to do, but she did not. The Agency argues that there
is no point in locking something if the key is left in the lock. The Agency points out that
Complainant could have left the key in another area of the facility and then notified someone as
to what she was doing. According to the Agency, the security procedures are in place because
of problems with theft. As to the remark from her Supervisor that Complainant considered
racist, the Agency states that the Supervisor intended his comment to mean his contacts in
management were higher than Complainant’s contacts in management.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
0120113730

4
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS

We shall assume arguendo that Complainant established a prima facie case of race
discrimination. We agree with the AJ that the Agency articulated a legitimate,
nondiscriminatory reason for the investigative interview and the Letter of Warning by
referencing its position that Complainant failed to comply with security procedures when she
placed the blank money orders in a window counter locked drawer with the drawer’s key in the
lock.

Upon consideration of Complainant’s arguments on appeal, we are not persuaded that she
exercised the proper degree of care in securing her blank money orders. Although she placed
the money orders in what she maintains was a secured container, the presence of the key in the
lock in effect rendered the money orders unsecured. Complainant could have contacted a
manager for the vault combination. Further, we find no discriminatory animus in the
Supervisor’s remark to Complainant about him also knowing people in high places. We
discern no discriminatory intent in the Agency conducting an investigative interview and
issuing a Letter of Warning in response to Complainant’s failure to comply with security
procedures. The Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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
0120113730

5
of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 21, 2013
Date