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

Equal Employment Opportunity Commission

Aug 26, 2014

0120123244 (E.E.O.C. Aug. 26, 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. 0120123244

Hearing No. 530-2011-00268X

Agency No. 4C-170-0046-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 18, 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 Part-Time
Flexible City Carrier at the Agency’s Post Office in Lebanon, Pennsylvania. On April 23,
2011, Complainant’s supervisor (S1) conducted an observation of letter carriers. When S1
went to observe Complainant, she went to a convenience store where she knew he often took
his lunch break. S1 observed Complainant taking his lunch break for one hour and 20
minutes, well beyond the authorized 30-minute break. S1 approached Complainant after he
left the store and questioned him about the duration of his break. Complainant initially
responded that “this was not the place to ask me that question” and then that he was in the
store “for as long as it takes me to recover myself from my comfort stop.” S1 and another
supervisor (S2) escorted Complainant back to the post office where Complainant said to S1
“you’re going to get yours” before leaving the premises. On April 28, 2011, S2 issued
Complainant a Letter of Emergency Placement in Off-Duty Status based on S1’s observation of
Complainant’s extended lunch break and for threatening S1. The Postmaster concurred with
S2’s decision. Complainant was instructed to return to work on June 18, 2011.
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On June 20, 2011, S2 instructed Complainant to work 90 minutes of overtime. Complainant
claimed that he had a medical restriction which limited him to an eight-hour workday. S2
informed Complainant that he had not provided acceptable medical documentation supporting
his claimed medical restrictions and was instructed to provide updated medical documentation.
Complainant worked the overtime.

On May 17, 2011 (and amended on June 24, 2011), Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of race/national origin
(Hispanic/Puerto Rican), sex (male), and in reprisal for prior protected EEO activity when:

1. On April 23, 2011, he was placed on Emergency Placement because his retention
on duty could result in injury to self or others; and

2. On June 20, 2011, he was told by his supervisor to work outside of his eight-hour
per day medical restriction, forcing him to work one hour and 30 minutes in
overtime.1

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 June 11,
2012.

In his decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and determined that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Namely, Complainant was placed on emergency
placement after S1 observed him taking an excessive break at a local convenience store; he
disrespectfully answered S1’s questions about his break; and he threatened S1 after returning to
the Post Office. Further, as to his overtime assignment, Complainant claimed that he had an
eight-hour workday medical restriction; however, he had not submitted the proper medical
documentation substantiating his claimed restrictions. The AJ concluded that Complainant
failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ
found that Complainant had not been discriminated or retaliated against as alleged. The
Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

1 The Commission notes that Complainant did not raise disability as a basis of discrimination in
his complaint. In addition, Complainant raised no challenges on appeal to the Agency’s
dismissal of several additional claims that he raised in his complaint; therefore, the
Commission will not address these additional claims in this decision.
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CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing summary judgment as material
facts remain in dispute. Further, Complainant argues that the AJ made impermissible
credibility determinations and reached unwarranted conclusions. Accordingly, Complainant
requests that the Commission reverse the final order.

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.
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, assuming arguendo
that Complainant established a prima facie case of discrimination and reprisal, Complainant
failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its
actions. Specifically, S2 affirmed that she issued Complainant the Emergency Placement in
Off-Duty Status Letter based on S1’s observance of Complainant taking a longer-than-
authorized break and Complainant’s threat to S1. ROI, at 96-97. S2 noted that she relied
upon S1’s observation of Complainant at the convenience store, statements from the store’s
owner and a carrier, and her own observation of Complainant’s threat to S1. Id. at 97.
Complainant does not dispute management’s account of his excessive break; rather, he
explained that he was “recovering from a comfort stop.” In addition, Complainant admitted to
initially avoiding answering S1’s questions about his break and later telling S1 that she was
“going to get yours.” Id

. at 74, 80-81.
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Finally, regarding the overtime assignment, S2 confirmed that Complainant was required to
work overtime because he had not submitted acceptable medical documentation indicating his
work restrictions. Id. at 104-05. S2 and the Postmaster advised Complainant what was needed
to update his medical restrictions to comply with the Agency’s policies. Id. at 121.
Complainant offered no challenges to the Agency’s explanation that his medical documentation
on file was not acceptable according to the Agency’s policies and did not deny that he was
informed of what he needed to submit to properly update his medical documentation. Id

. at
85.
Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were 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 or retaliatory 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 or reprisal 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 order, because the Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination or reprisal 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,
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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
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
August 26, 2014