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

Equal Employment Opportunity Commission

Mar 26, 2013

0120113432 (E.E.O.C. Mar. 26, 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. 0120113432

Agency No. 4G-720-0033-11

DECISION

On May 3, 2011, Complainant filed an appeal concerning his 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., Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § 621 et seq.1

For the following reasons, the
Commission AFFIRMS the Agency’s final decision.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Scipio A. Jones Post Office in Little Rock, Arkansas. On March 4, 2011, Complainant filed
an EEO complaint wherein he claimed that the Agency discriminated against and harassed him
on the bases of his race and national origin (African-American), sex (male), religion (Islam),
color (Black), disability, age (63), and in reprisal for his prior protected EEO activity when:

1. Complainant was issued a Letter of Warning dated December 28, 2010.

2. On January 31, 2011, Complainant was subjected to a route check with very light
mail.

1 The Agency did not issue a final order until September 6, 2011. Although Complainant was
premature in filing the instant appeal, we consider it timely filed and address the matters raised
herein.

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3. On February 18, 2011, Complainant was issued a Letter of Warning dated February
7, 2011.

4. On March 8, 2011, Complainant’s Supervisor was at his case and told Complainant
to refer to him as “sir.”

5. On March 9, 2011, upon returning from his route, Complainant’s Supervisor told
him to get off the clock.

6. On March 11, 2011, Complainant called in sick and was told to bring in
documentation.

7. On March 9, 2011, Complainant’s Supervisor followed him to the bathroom as he
had done on other occasions.

The Agency accepted claims (1), (3), and (5) for investigation. The Agency dismissed the
remaining claims for failure to state a claim.2

The Agency determined that Complainant failed
to show that he was harmed by an Agency action that affected a term, condition, or privilege
of his employment. The Agency further determined that the actions complained of, if in fact
true, are neither sufficiently severe nor pervasive to create a discriminatory hostile work
environment. At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).
The Agency then dismissed claims (1) and (3) on the grounds of mootness. According to the
Agency, grievance decisions on January 18, 2011, and March 28, 2011, resulted in the Letters
of Warning being reduced to official discussions. The Agency determined that Complainant
was no longer aggrieved and that the effects of the alleged discriminatory actions have been
completely eliminated. The Agency further determined that there is no reasonable expectation
that the alleged discrimination is likely to recur. The Agency noted that Complainant stated he
was seeking compensatory damages. However, the Agency pointed out that Complainant did
not complete the affidavit for compensatory damages. Id. at 3. The Agency nonetheless
proceeded to analyze the merits of claims (1) and (3) as well as claim (5).

2 At the outset, we note that Complainant does not challenge the Agency's dismissal of issues
(2), (4), and (6)-(7). The Commission has the discretion to review only those issues
specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address the dismissal
of these issues further in this decision.

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The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. With regard to claim (1), the Letter of Warning was issued for failure to follow
instructions, willfully delaying the mail. The Letter of Warning indicated that Complainant
brought back a large portion of his route late in the day despite being told never to bring back
mail until instructed to do so. As to claim (3), in terms of this Letter of Warning,
Complainant was cited for failure to follow instructions. The Agency stated that Complainant
was instructed to work an eight-hour day on February 1, 2011, but he instead worked nine
hours and two minutes. With respect to claim (5), Complainant was told by the Acting
Supervisor to get off the clock as the Acting Supervisor stated that on more than one occasion,
he did this in response to Complainant standing around on the clock after he had finished his
route. The Acting Supervisor stated that Complainant was not subjected to discipline after this
incident.

The Agency determined that Complainant failed to establish a prima facie case of
discrimination under each of the alleged bases. The Agency reasoned that Complainant was
not subject to any adverse employment actions in light of the Letters of Warning being reduced
to official discussions. The Agency also determined that Complainant did not present evidence
that similarly situated individuals outside his protected groups were treated more favorably.
Assuming arguendo that Complainant had established a prima facie case, the Agency
determined that it articulated legitimate, nondiscriminatory reasons for its actions.

With regard to Complainant’s attempt to establish pretext, the Agency noted as to claim (1),
Complainant claimed that he and another African-American employee were subjected to
disparate treatment. As to claim (3), Complainant argued that his race was a factor given that
the Acting Supervisor drove a vehicle with Confederate flags and had allegedly gotten
aggressive with a female African-American employee. Complainant also contended that
management improperly based their perspective on his rate of delivering mail on deadlines and
timeframes that did not apply to him because he is over 55 years of age. With regard to claim
(5), Complainant claimed that he was the only Muslim at the station and no one else had been
treated as he had. The Agency also stated that as a Black male high on the seniority list,
Complainant believed that management was trying to make an example of him. Complainant
argued that the Acting Supervisor had not told anyone else to get off the clock and
Complainant stated his belief that the action was in reprisal for him naming the Acting
Supervisor in other complaints. The Agency determined that Complainant’s contentions did
not establish that its articulated reasons were pretext. Thereafter, Complainant filed the instant
appeal.

ANALYSIS AND FINDINGS

With regard to the dismissal of claims (1) and (3), we observe that as a result of grievances
that Complainant filed, the Letters of Warning were reduced to an official discussion. The
Commission has previously held that a Letter of Warning reduced to a discussion no longer
constitutes a disciplinary action. Yeats v. United States Postal Service, EEOC Request No.
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05940605 (October 27, 1994); Gafforino v. United States Postal Service, EEOC Request No.
05910847 (December 30, 1991).

However, the instant complaint also concerns a claim of reprisal. The Commission has stated
that adverse actions need not qualify as “ultimate employment actions” or materially affect the
terms and conditions of employment to constitute retaliation. (Lindsay v. United States Postal
Service, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual
No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse
treatment that is based on a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity. Id.

Under the circumstances of this case, we find the Letters of Warning no longer state a claim
under all bases except reprisal since they were reduced to official discussions. We find that the
Letters of Warning set forth a viable claim of reprisal even if later reduced to discussions
because they are reasonably likely to deter a Complainant from engaging in protected activity.
Further, claims (1) and (3) were improperly dismissed on the grounds of mootness. The
Agency stated that Complainant did not complete the affidavit for compensatory damages.
However, we discern no evidence of the referenced PS Form 2569-C in the record. Should
Complainant prevail in his claims, the possibility of an award of compensatory damages exists,
and Complainant’s claims are not moot. See Glover v. United States Postal Service, EEOC
Appeal No. 01930696 (December 9, 1993). Thus, we shall consider the merits of claims (1)
and (3) in terms of the basis of reprisal.

With regard to claims (1) and (3), we shall assume arguendo that they state a prima facie case
of reprisal. The Agency stated as to claim (1) that Complainant was disciplined because he
returned a large portion of the mail from his route despite being instructed never to do that
unless told to do so. As to claim (3), the Agency stated that Complainant failed to follow
instructions given that he was instructed to work an eight-hour day, but instead worked nine
hours and two minutes. We find that the Agency articulated legitimate, nondiscriminatory
reasons for imposing disciplinary action against Complainant.

With respect to claim (5), we shall assume arguendo that Complainant set forth a prima facie
case under each of the alleged bases. The Agency explained that Complainant was told to get
off the clock by the Acting Supervisor because Complainant would sometimes stand around
after he had completed his route. We find that this constitutes a legitimate, nondiscriminatory
reason for the Agency’s action.

Complainant attempts to establish pretext as to claim (1) by stating that he returned to the
office because he was sick. According to Complainant, while on his route, he experienced
pain in his back and legs. Complainant claimed that he called the station three times before
returning but no one answered the telephone. The Acting Supervisor stated that Complainant
did not notify management before he brought back a large portion of his route without being
instructed to do so by management. According to the Acting Supervisor, Complainant had
been issued discipline and verbally warned on prior occasions not to return the mail. The
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Acting Supervisor further stated that he is not aware of any employee under his chain of
command that did not do as they were instructed to do and willingly and knowingly delayed the
mail, but was not disciplined. We find that the evidence does not support Complainant’s claim
of reprisal as to claim (1).

With respect to claim (3), we observe that Complainant based his argument primarily on the
Acting Supervisor’s alleged bias against African-Americans. However, the sole basis still at
issue is reprisal. The Acting Supervisor stated that he is unaware of any employee under his
chain of command that exceeded their route time of eight hours and was not disciplined. We
find that Complainant has not submitted sufficient argument or evidence to refute the Agency’s
explanation for issuing disciplinary action.

As for claim (5), Complainant claims that upon returning to the office from a route, an
employee is allowed five minutes to clock in and end their tour. Complainant contends that he
was following procedures and had not been in the office for five minutes when the Acting
Supervisor came over to his case and screamed at him to get off the clock. The Acting
Supervisor stated that Complainant was standing around and wasting time. According to the
Acting Supervisor, although the standard operating procedure is that employees are given five
minutes to complete their tour, it is also the standard practice for a Supervisor to tell
employees to get off the clock if they have finished their duties. Upon review of the record,
we find that Complainant has not established that the Acting Supervisor’s explanation for
telling him to get off the clock was pretext and attributable to discriminatory motivation on any
of the alleged bases. We find that Complainant has failed to establish that discrimination
occurred with regard to claim (5).

CONCLUSION

The Agency’s determination in its final decision that no discrimination occurred 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 tends to
establish that:

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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
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
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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

March 26, 2013
Date