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

Equal Employment Opportunity Commission

Sep 11, 2014

0120131460 (E.E.O.C. Sep. 11, 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
(Eastern Area),
Agency.

Appeal No. 0120131460

Hearing No. 532-2012-00095X

Agency No. 1C-441-0016-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s January 29, 2012 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’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer
Operator at the Agency’s Processing and Distribution Center in Cleveland, Ohio. On January
7, 2012, Complainant was involved in a serious accident while operating his tractor trailer on
the dock. On the day in question, Complainant lined up his tractor trailer for mail to be
unloaded and scanned by dock personnel and took registry mail to a receiving clerk.
Complainant returned to his vehicle and pulled away from the dock without ensuring that the
mail was unloaded and that it was safe to pull his vehicle away from the dock. An employee
was still unloading the vehicle when Complainant pulled away from the dock and two
containers of mail fell from the truck. In addition, Complainant ignored safety lights that
alerted drivers of dock clearance. The Plant Manager (PM) instructed the Distribution
Operations Manager (M1) to place Complainant in an emergency off-duty status and to send
him to the hospital to undergo a drug and alcohol screening. Complainant tested negative for
drugs and alcohol.

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On January 13, 2012, the Postal Vehicle Service Operations Manager (M2) held an
investigative interview with Complainant. Complainant acknowledged that he understood
proper procedures and admitted fault during the interview. On February 8, 2012, M2 issued
Complainant a Notice of Seven-Day Suspension for Unsatisfactory Performance/Failure to
Perform Duties in a Safe Manner for the January 7, 2012 accident. The suspension was later
reduced to a Letter of Warning.

On April 19, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of race (African-American) when:

1. On February 18, 2012, he became aware that he was treated differently than
another employee who had an accident when on January 7, 2012, he was escorted to
the hospital for a drug test and put on emergency placement in a non-pay status for
two days; and
2. On an unspecified date, he was issued a Seven-Day Suspension, which was
subsequently reduced to a Letter of Warning.

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, but the AJ assigned to the
case granted summary judgment in favor of the Agency and issued a decision on January 29,
2013.

In her decision, the AJ determined that Complainant failed to establish a prima facie case of
race discrimination. Complainant identified two comparators whom he claimed were treated
more favorably than he was treated. The AJ found that these comparators were not similarly
situated. The AJ determined that the first comparator was a contract employee and not subject
to the collective bargaining agreement. Further, the second identified comparator’s accident
was minor and did not jeopardize the safety of himself or others. Thus, the AJ found that
Complainant failed to present evidence sufficient to create an inference of discrimination and
he failed to show a causal connection between his race and the actions alleged. The AJ
concluded that Complainant failed to establish that any of the Agency’s actions were motivated
by discriminatory animus and, thus, Complainant had not been subjected to discrimination as
alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision.
Complainant filed the instant appeal without submitting any arguments or contentions in
support.

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.
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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.
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). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that Complainant failed to
establish a prima facie case of race discrimination as he failed to show that similarly situated
employees outside of his protected class were treated more favorably. However, even
assuming arguendo that Complainant had established a prima facie case of discrimination,
Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory
reasons for its actions. Specifically, PM affirmed that she ordered Complainant to be placed in
an emergency off-duty status and sent for a drug and alcohol screening because the January 7,
2012 accident was an egregious safety violation. ROI, at 117. PM explained that
Complainant’s pulling his vehicle away without checking was a violation of standard operating
procedure, and she was concerned for his safety and the safety of other employees. Id.
Complainant was placed in off-duty status for two days. Id. at 91. Complainant returned to
work on January 12, 2012, and M2 conducted an investigative interview with him the next
day. During the interview, Complainant admitted he violated safety procedures. Id. at 130.
Based on the severity of the accident and pursuant to the Employee and Labor Relations
Manual, M2 issued Complainant a seven-day suspension (later reduced to a Letter of
Warning). Id

. at 131-32.
Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's race was a factor 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 animus. Complainant failed to carry this burden. As a result, the Commission
finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not
subjected to discrimination as alleged.

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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 order, 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
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.
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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
September 11, 2014