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

Equal Employment Opportunity Commission

May 9, 2013

0120120470 (E.E.O.C. May. 9, 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
(Capital Metro Area),
Agency.

Appeal No. 0120120470

Hearing No. 430-2010-00318X

Agency No. 4K-270-0037-10

DECISION

Complainant filed an appeal from the Agency’s September 29, 2011 final order 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. The Commission deems the appeal timely and accepts it for de novo review
pursuant to 29 C.F.R. § 1614.405(a). 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 City Carrier at the
Agency’s North Ridge Station in Raleigh, North Carolina. On January 30, 2010, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the bases of race
(African-American), sex (male), color (Black), and in reprisal for prior protected EEO activity
when: (1) on December 28, 2009, Complainant received a Notice of 7-Day "No Time Off"
Suspension for Unsatisfactory Performance; and (2) on January 27, 2010, Complainant
received a Notice of 14-Day Suspension.

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). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment
and issued a decision on September 20, 2011.

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In her decision, the AJ determined that Complainant established a prima facie case of race, sex
and color discrimination.1

She further found that the Agency explained that the discipline was
issued for Complainant’s failure to follow instructions, for unacceptable performance, for
utilizing unauthorized overtime, and for causing a preventable motor vehicle accident. The AJ
also noted that both White employees and female employees received discipline for similar
infractions. The AJ concluded that Complainant failed to refute the Agency’s explanations and
failed to prove that they were a pretext for discrimination. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS

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). 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.

Complainant claims that in the Fall of 2009, mail volume increased at the North Ridge Station
but that Carriers were not allotted the extra time they needed to case and deliver their routes.
Complainant alleges that instead, they were constantly harassed by being subjected to multiple
office and street observations, written up, and given pre-disciplinary interviews. Many of
Complainant’s coworkers submitted statements suggesting that there was indeed a great deal of
tension between the employees and management, especially concerning the denial of what they
believed were reasonable requests for overtime. From management’s perspective, Carriers
were not working efficiently so that they could claim that they needed overtime, which
management was under pressure to reduce.

Complainant received discipline for several infractions as did many of his colleagues, both
Black and White, male and female. Whether the discipline was rational or required under the
collective bargaining agreement is not the question before us. Rather, our inquiry concerns
whether it was motivated by unlawful discrimination. Upon review of this record, we find no
evidence from which a reasonable fact finder could conclude that the discipline Complainant
received was based on his protected classes. Complainant’s belief is not evidence. It is simply
his belief, and without more, is insufficient to defeat a motion for summary judgment. We
discern no basis to disturb the AJ’s decision, and we AFFIRM the Agency’s final order.

1 The AJ found that Complainant’s participation in the grievance process where no claims of
discrimination were raised was not protected activity and that he therefore could not establish a
prima facie case of retaliation. We agree.
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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
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.

0120120470

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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

May 9, 2013
Date