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

Equal Employment Opportunity Commission

Sep 19, 2014

0120131001 (E.E.O.C. Sep. 19, 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
(Pacific Area),
Agency.

Appeal No. 0120131001

Agency No. 1F-901-0050-12

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
November 26, 2012 final Agency decision (FAD) concerning her 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
FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center in Los Angeles, California. On
March 30, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race/national origin (Hispanic) and sex (female) when:

1. On February 13, 2012, she was placed on Emergency Placement in an off-duty non-
pay status.

In addition, Complainant alleged that she was subjected to reprisal for prior protected EEO
activity when:

2. On March 16, 2012, she was issued a 14-Day No Time-Off Suspension.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
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2
Administrative Judge. When Complainant did not respond within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and determined that management articulated legitimate,
nondiscriminatory reasons for its actions. Namely, Complainant’s supervisor (S1) affirmed
that he placed Complainant in an emergency off-duty status after he instructed her to bring
mail to the dock area for dispatch, and she refused to do so, causing the mail to be delayed.
S1 held an investigative interview with Complainant and she denied hearing his instructions
even though S1 repeated his instructions twice. Complainant’s manager stated that the same
facts supported issuance of the suspension: Complainant’s failure to follow S1’s instructions.
The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. Complainant filed the instant appeal without
submitting any contentions or arguments in support.

ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, 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 she 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).
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, S1 affirmed that, on February 14, 2012, he instructed
Complainant to bring mail to the dock area for dispatch and she refused to do so, which
delayed the mail. ROI, at 60. S1 added that Complainant responded loudly that she was “not
a mule.” Id. at 61, 67. As a result of Complainant’s refusal to follow his instructions, S1
placed her on emergency placement in off-duty status. Id. at 61. During the investigative
interview regarding the incident, Complainant denied hearing the instructions; however, S1
noted that he repeated his instructions twice. Id

. at 63. As a result, S1 issued Complainant a
14-Day No Time-Off Suspension for refusing to follow instructions and delaying mail. ROI,
at 62; ROI, Ex. 5.
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3
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Complainant can do this directly by showing that the Agency's
proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine

, 450
U.S. at 256.
As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented.
Beyond Complainant's bare assertions, the Commission finds that there is no persuasive
evidence in the record that Complainant’s protected classes played a role in the Agency's
actions at issue. 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
discriminatory or retaliatory animus was a factor in its actions. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that she
was 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 decision because the preponderance of the evidence of record 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
0120131001

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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
September 19, 2014