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

Equal Employment Opportunity Commission

May 29, 2013

0120120693 (E.E.O.C. May. 29, 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
(Pacific Area),
Agency.

Appeal No. 0120120693

Hearing No. 480-2010-00489X

Agency No. 4F-900-0049-10

DECISION

On November 23, 2011, Complainant filed an appeal from the Agency’s November 10, 2011,
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 a Letter Carrier at
the Agency’s Beverly Hills Post Office in Beverly Hills, California. During the relevant time,
Person A was the Officer in Charge. Person B was a Supervisor, Customer Services. Person
C was also a Supervisor, Customer Services.

Complainant filed an EEO complaint dated March 11, 2010, alleging

1. The Agency discriminated against Complainant on the bases of race (Caucasian) and
color (white) when, on November 30, 2009, Complainant was directed to go home
and placed on leave without pay (LWOP).

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2. The Agency discriminated against Complainant in retaliation for prior EEO activity
when, on January 11, 2010, Complainant’s request for sick leave for January 8 and
9, 2010, was denied, and he was charged LWOP.1

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 a decision without a
hearing and issued a decision without a hearing on October 13, 2011.

In his decision, the AJ noted that with regard to issue (1), on November 30, 2009, Person A
and Person B approached Complainant while he was delivering his route. The AJ noted that
Person A asked Complainant for the keys to his locked, postal vehicle so she could check how
much mail was remaining and check his progress. The AJ noted Complainant refused to give
Person A the keys. The AJ noted that Complainant stated that he had been advised at a union
meeting the week before that carriers should not give their keys to anyone they do not trust.
The AJ noted Complainant also stated that he was suspicious that Person A would tamper with
the vehicle or its contents so as to make it appear as though Complainant had committed some
violation of postal regulations.

The AJ found that Person A gave Complainant two direct orders to give her the keys;
however, he refused both orders. The AJ noted that Person A then directed Complainant to
return to the facility. The AJ noted that when he arrived at the facility, Complainant was
instructed to turn in his keys and other postal equipment and was told to report to the facility
the next morning for an investigative interview concerning his refusal to give the keys to
Person A. The AJ noted that other carriers had to be used to complete delivery of
Complainant's route.

The AJ stated that on December 1, 2009, Person B conducted an investigative interview with
Complainant. The AJ noted that at this time Complainant stated that he did not give his keys
to Person A the day before because he felt endangered by this instruction and did not trust
Person A. The AJ noted Complainant was charged leave without pay for one hour on
November 30 and 7 hours on December 1.

The AJ noted Complainant identified Carrier 1, as a comparative. The AJ noted that Carrier
1 stated that on two occasions, in August and October 2009, Person A approached him while
he was delivering mail on his route. Specifically, the AJ noted that Person A approached
Carrier 1 while he was taking a lunch break and on both occasions, she told him to stop eating
his lunch and resume delivering mail. The AJ noted that Carrier 1 refused and told her he
would resume delivery after he finished eating. The AJ noted that Person A repeated her

1 Complainant raised additional issues during pre-complaint counseling which the Agency
determined he did not raise in his formal complaint. Thus, the Agency found Complainant
abandoned those issues.
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order, and Carrier 1 continued to refuse. The AJ noted that on both occasions, Carrier 1
finished eating and then completed his route; however, he did not receive any form of
discipline for either incident.

The AJ found insufficient evidence to conclude that Carrier 1 and Complainant were similarly
situated in terms of misconduct. The AJ stated the undisputed evidence conclusively
established that Complainant's refusal to provide the keys resulted in a significant degree of
adverse consequences to the Agency. Specifically, the AJ stated that Person A was prevented
from gathering information on the status of a route that had already been identified as
experiencing a substantial increase in the amount of time it took to complete delivery.
Moreover, the AJ noted that Complainant's actions added to the delay in completing delivery.
In addition, the AJ noted that Complainant's actions compelled Person A to assign other
carriers to complete delivery on Complainant's route. In contrast, the AJ noted that there was
no evidence that Carrier 1’s delay in complying with Person A's direction resulted in a delay in
completing his route in a timely manner or in any other adverse consequences. The AJ found
Complainant failed to identify sufficient evidence that he was subjected to discrimination based
on his race or color.

With regard to issue (2), the AJ noted that Complainant did not report to work on January 8 or
January 9, 2010, due to illness. The AJ found Complainant gave management notice of his
absence by telephone on each day. The AJ stated that on January 11, 2010, Complainant
submitted a written request for sick leave to Person C, along with a note from his doctor and
copies of prescriptions that his doctor had given him. The AJ noted that Person C denied
Complainant's request on the grounds that the documentation submitted was insufficient.
Specifically, the note from Complainant's doctor did not specify the nature of Complainant's
illness. The AJ noted Complainant was charged leave without pay for his absences on January
8 and 9, 2010.

The AJ noted that Complainant identified his protected activity as filing the present complaint.
The AJ noted that Complainant initiated contact with an EEO counselor on December 1, 2009.
However, the AJ determined the undisputed evidence conclusively established that Person C
did not have knowledge, prior to February 3, 2010, that Complainant had undertaken any
protected activity. Therefore, the AJ found Person C had no knowledge of Complainant's
protected activity when he denied Complainant's request for sick leave on January 11, 2010.
Thus, the AJ found Complainant has failed to establish a prima facie case that the Agency
retaliated against him when his request for sick leave was denied.

The Agency subsequently issued a notice of final action on November 10, 2011. The
Agency’s notice of final action fully implemented the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

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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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 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 that on appeal Complainant does not challenge the definition of the
issues in the present complaint.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

Upon review, we find the AJ’s issuance of summary judgment was appropriate as there are no
genuine issues of material fact in dispute. Additionally, we find the record in the present case
was fully developed. In the present case, we find Complainant failed to prove by a
preponderance of evidence that he was subjected to discrimination based on his race, color, or
in reprisal for his protected EEO activity.

CONCLUSION

Accordingly, the Agency’s notice of final action is AFFIRMED.
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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.

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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 29, 2013
Date