Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Mar 12, 2014

0120122002 (E.E.O.C. Mar. 12, 2014)

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
(Capital Metro Area),
Agency.

Appeal No. 0120122002

Hearing No. 430-2010-00396X

Agency No. 4K-230-0038-10

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s final action concerning his 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the final action.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Forest Hill Station in Richmond, Virginia. On April 1, 2010, Complainant filed a
formal complaint alleging that the Agency discriminated against him on the bases of race
(Caucasian), sex (male), disability, and in reprisal for prior protected EEO activity when:

1. On November 18, 2009 and December 10, 2009, Complainant was told that he
could not buy back his leave;

2. On December 7, 2009, Complainant was told he could not attend a previously
scheduled appointment regarding his on-the-job injury, and when he subsequently
went to the appointment, the Postal Inspection Service was contacted;

3. On December 8, 2009, Complainant was told that he could not case marriage mail;
0120122002

2
4. On January 8, 2010, Complainant was given a pre-disciplinary discussion and
placed on Administrative Leave; and

5. On February 24, 2010, Complainant was issued a Notice of Removal for Improper
Conduct.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. On February 14, 2012,
the AJ granted summary judgment in favor of the Agency.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), Complainant submitted a request to the
Injury Compensation Officer (HR1) asking to buy back sick and annual leave he used in May
and July 2009. HR1 forwarded Complainant a letter explaining the Agency policy which
indicated that employees could not buy back any leave used after the Office of Workers’
Compensation (OWCP) adjudication date. As a result, Complainant’s request to buy back his
leave was denied. With respect to claim (2), Complainant’s supervisor (S1) affirmed that he
approved Complainant’s request for leave to attend his appointment with the condition that he
complete the majority of his deliveries before departing. Complainant did not complete his
deliveries as instructed, but left early to attend his medical appointment anyway and S1 had to
appoint another carrier to finish the route. Complainant was not disciplined for disregarding
S1’s instructions.

Regarding claim (3), marriage mail is a special class of mail which includes weekly
advertisements for businesses to be delivered on specific days. S1 explained that marriage
mail is provided to carriers in delivery sequence and does not need to be sorted or cased. As a
result, S1 advised Complainant that he could not case marriage mail.

With respect to claims (4) and (5), on August 29, 2008, the Office of Inspector General (OIG)
initiated an investigation into Complainant’s on-the-job injury claim. The investigation
revealed that from August 26, 2008 through February 16, 2009, Complainant provided dance
instruction at his wife’s dance studio while receiving OWCP payments for an on-the-job injury
to his right knee. Complainant’s actions were in direct contradiction to his assertion that he
was totally incapacitated and could not perform any of the duties of his position. When
questioned, Complainant admitted that he provided dance instruction and taught dance classes,
but was not compensated. Based upon the OIG’s findings, the Agency concluded that
Complainant had fraudulently claimed complete incapacitation due to an on-the-job injury
while working as a dance instructor at his personal business. As a result, the Agency issued
Complainant a Notice of Removal for Improper Conduct.

The AJ concluded that Complainant had not presented any evidence that the Agency’s reasons
for its actions were pretextual. As a result, the AJ found that Complainant had not been
0120122002

3
discriminated or retaliated against as alleged. When the Agency failed to issue a final order
within 40 days of receipt of the AJ's decision, the AJ's decision finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged became the Agency's
final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ ignored evidence and erred in granting summary
judgment in favor of the Agency. Complainant referred to his response to the AJ’s December
8, 2011 Notice of Intent to Grant Summary Judgment. In it, Complainant contended that the
AJ should have held a hearing because the Agency’s reason for terminating him was pretext for
unlawful discrimination. Complainant argued that he did nothing wrong and he was terminated
based on “suspicions.” Accordingly, Complainant requests that the Commission reverse the
Agency’s final action.

ANALYSIS AND FINDINGS
AJ's Issuance of Summary Judgment

The Commission must first determine whether it was appropriate for the AJ to have granted
summary judgment. The Commission's regulations allow an AJ to grant summary judgment
when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.

, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. As explained
below, the Commission finds that the AJ’s grant of summary judgment was appropriate.
Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
0120122002

4
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983. To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine

, 450 U.S. 248, 256 (1981).
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, regarding claim (1), HR1 affirmed that she informed
Complainant that the Agency’s leave buy-back procedures stated that once a claim was
accepted by OWCP, the employee could not buy back any leave used beyond the OWCP
adjudication date. ROI, at 213. With respect to claim (2), S1 denied telling Complainant that
he could not attend his scheduled appointment; rather, he had previously asked Complainant to
submit medical documentation prior to his appointment date. Id. at 279. Complainant did not
provide any documentation for his appointment, but management made adjustments and simply
requested that he complete delivery of his route prior to leaving for his appointment. Id.
Complainant left for his appointment before completing his deliveries, but management did not
discipline him. Id. Further, S1 denied that anyone contacted the OIG or Postal Inspection
Service. Id

.
As to claim (3), S1 explained that marriage mail included weekly advertisements for businesses
and usually was delivered on Tuesdays and Wednesdays. ROI, at 283. S1 stated that carriers
were not instructed to case marriage mail because it was considered a time-wasting practice as
it was already in sequence when given to the carrier. Id

.
Finally, regarding claims (4) and (5), S1 confirmed that on January 8, 2010, he conducted a
pre-disciplinary discussion with Complainant and placed him on administrative leave for
violating several Agency policies, including demonstrating physical abilities outside of his
Postal duties while indicating an inability to perform those same abilities. ROI, at 285, 304.
An OIG investigation revealed that Complainant worked at his wife’s dance studio while out of
work for an on-the-job injury from August 26, 2008 through February 16, 2009. Id. at 338.
As a result, on February 24, 2010, S1 issued Complainant a Notice of Removal for Improper
Conduct for performing work at his personal business while claiming to be totally incapacitated
to report for work. Id

. at 342.
Because the Agency proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine

, 450 U.S. at 256.
0120122002

5
Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were factors in any of the Agency’s actions. At
all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on
the basis of discriminatory and retaliatory animus. Complainant failed to carry this burden.
Accordingly, the Commission finds that Complainant failed to show that he was discriminated
or retaliated against as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final action, because the Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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
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
0120122002

6
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

Date
March 12, 2014