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

Equal Employment Opportunity Commission

Jul 18, 2014

0120130038 (E.E.O.C. Jul. 18, 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
(Headquarters),
Agency.

Appeal No. 0120130038

Hearing No. 560-2012-00048X

Agency No. 6Z-000-0009-11

DECISION
On September 24, 2012, Complainant filed an appeal from the Agency’s September 6, 2012,
notice of 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. For the following reasons, the Commission AFFIRMS
the Agency’s notice of final action.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EAS-21
Supervisor in the Accounts Payable Branch (APB) at the Agency’s Saint Louis Accounting
Service Center (ASC) facility in Saint Louis, Missouri.

During the relevant time, Person A was the acting manager of ASC. Person B worked under
Person A as the Manager of the APB and was Complainant’s direct manager. In 2009, ASC
was allotted a total of eleven supervisors, three of which were assigned to cover four divisions
in the APB. In 2010, Complainant supervised two of the divisions in APB: Contract services
with eight employees and Torts with four employees. The other two APB divisions were
supervised by Person C, who supervised the Claims division with twenty-five employees, and
Person D, who supervised the Transportation division with thirteen employees. On March 14,
2011, Person B temporarily assigned Complainant to the Claims division for thirty days and
assigned Person C to Complainant’s former duty of Contract Services and Torts. The Agency
stated this was done in an effort to cross train employees, while Complainant maintains it was
to alleviate a hostile work environment situation that existed in the Claims division.
0120130038

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On March 23, 2011, the Agency announced a national program called Redesign aimed at
reducing Agency costs. As a result, ASC had to eliminate one EAS-21 Supervisor position.
ASC ultimately decided to eliminate a supervisor position that had been left vacant due to an
employee’s retirement. Upon reorganizing ASC to compensate for the eliminated position,
Person A determined that APB was in the best situation to absorb the loss of a supervisor.
Person A directed Person B to reallocate APB’s responsibilities and duties among two
supervisors, rather than the three supervisors it previously had. As a result Complainant was
permanently assigned to be supervisor over the Claims divisions and Person D was assigned
over the Transportation, Contract Services, and Torts divisions. The record indicates Person B
chose to keep Person D with the Transportation division because of her functional
understanding and good track record with federal accounting law compliance. In an effort to
evenly disperse the number of employees between the two supervisors, Person D was also
assigned the Contract Services and Torts divisions giving her a total of twenty-five employees
which was the same number of employees Complainant supervised in the Claims division.
After the Redesign, Complainant maintained the same position title of EAS-21 Supervisor.

On July 6, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and sex (male) when:

On May 21, 2011, Complainant was permanently reassigned from his position as
Supervisor of Contract Services to Supervisor of Claims in the Accounts Payable
Branch of the Accounting Service Center.

At the conclusion of the investigation on his complaint, 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 a
decision without a hearing and issued a decision without a hearing on September 6, 2012. The
Agency subsequently issued a notice of final action fully implementing the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The AJ granted the Agency’s motion for a decision without a hearing because she found the
undisputed facts showed complainant failed to meet the prima facie requirements to bring a
claim of workplace harassment on the bases of race and sex, and failed to show that the
reasons articulated by the Agency for its actions were pretext for discrimination. Specifically,
the AJ found that Complainant failed to identify a similarly situated employee outside his
protected class that was treated differently. Ultimately, the AJ found Complainant did not
prove that the reassignment was motivated by discriminatory intent.

On appeal, Complainant alleges that the AJ’s granting of the motion for a decision without a
hearing was improper. Complainant claims that “[a]ll of the evidence was not submitted in the
investigative file by the agency to the Administrative Judge,” including “a Congressional
Complaint with Congressmen Lacy Clay and . . . other important and crucial documents.”
0120130038

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Complainant also reasserts his original allegations that he was discriminated against based on
his race and sex when he was permanently reassigned.

ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29
C.F.R.§ 1614.405(a). See EEOC Management Directive for 29 C.F.R. Part 1614

, Chap. 9,
§ VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission’s own assessment of the record and its interpretation of the
law”).
At the outset, we note Complainant does not challenge the definition of his complaint. Upon
review, we find the AJ properly granted the Agency’s motion for a decision without a hearing.
The record shows investigation, discovery, and interrogatories sufficient to support a decision
without a hearing. There is no genuine issue of material fact in regard to Complainant’s claim
of discrimination. While Complainant did provide documents that were not originally included
in the record, specifically the Congressional Complaint and proof of medical leave, these
documents pertain to a retaliation claim that was rejected by the AJ as a separate issue.
Additionally, the Congressional Complaint is essentially a restatement of Complainant’s
harassment claim and does not call into question any new issues of material fact.

We turn now to Complainant’s allegations of discrimination. To prevail in a discrimination
claim of disparate treatment without direct evidence of discriminatory intent, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the Complainant must make a prima
facie claim of discrimination showing complainant was: (1) a member of a protected class; (2)
subject to an adverse employment action concerning a term, condition, or privilege of
employment; and (3) treated differently than similarly situated employees outside his protected
class. See e.g. *** v. Dep’t of the Treasury, EEOC Appeal No. 0120120091 (May 3, 2014),
Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't
of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). Upon making a prima facie
showing, the burden then shifts to the Agency to show that it had a legitimate,
nondiscriminatory reason for the employment action. See Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252 (1981). Finally, the burden shifts back to the Complainant who
bears the ultimate burden of proving that the nondiscriminatory reason articulated by the
Agency was in fact pretext for discriminatory. See id.

at 253-4.
Even if Complainant established a prima facie claim, the Agency articulated a legitimate,
nondiscriminatory reason for the reassignment. Person D’s skill set benefitted the
Transportation division and assigning her the Contract Services and Torts divisions while
0120130038

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permanently assigning Complainant to Claims created an even distribution of employees under
each supervisor. Ultimately, Complainant failed to show these reasons were pretext for
discrimination. After the reassignment Complainant retained the same EAS-21 Supervisor title
and salary as before. Disagreement by Complainant and other employees with decisions by
management officials does not, standing alone, support a finding of discrimination. See
Corpus v. U.S. Postal Serv.

, EEOC Appeal No. 0120102509 (Nov. 5, 2010). Thus, we find
the AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the
record evidence does not establish that discrimination occurred.

CONCLUSION
Accordingly, we AFFIRM the Agency’s notice of final action finding no discrimination.

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).
0120130038

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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
July 18, 2014