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

Equal Employment Opportunity Commission

May 29, 2013

0120121976 (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. 0120121976

Agency No. 4F-967-0013-11

DECISION

On March 8, 2012, Complainant filed an appeal from the Agency’s February 28, 2012, final
decision 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 deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Data Collection
Technician at the Agency’s Processing & Distribution Center in Honolulu, Hawaii. On July 1,
2011, Complainant was told to clock out and leave the premises because he threatened his
supervisor. The supervisor provided a lengthy and detailed account of the encounter, including
the fact that a Postal Inspector was called to the facility. Complainant was placed on
administrative leave for approximately two weeks. Soon after returning to work, he learned
that management had proposed his removal, due to his conduct on July 1, 2011. His removal
became effective in February 2012, and Complainant filed a mixed appeal with the Merit
Systems Protection Board (MSPB). After a hearing, the MSPB issued an Initial Decision on
November 6, 2012, sustaining the removal action and finding that it was not retaliatory.

On September 19, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and in reprisal for prior
protected EEO activity when:

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1. On July 1, 2011, Complainant was directed to clock out and leave the premises; and
2. On August 5, 2011, Complainant received a Notice of his Proposed Removal.

The Agency accepted the first claim for investigation but dismissed the second claim pursuant
to 29 C.F.R. § 1614.107(a)(5) for challenging a proposed action. 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). When
Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency’s decision to send him
home on July 1, 2011, was unlawfully motivated. This appeal followed, and Complainant
specifically challenges the dismissal of claim (2).

ANALYSIS AND FINDINGS

Upon review of the record, we have considered Complainant’s assertion that no such
threatening behavior occurred, but we find his denial to be lacking in credibility, given the
extensive and detailed documented account provided by the supervisor. There is no persuasive
evidence that his race or prior protected activity motivated the Agency to send him home on
the day in question. Furthermore, while we agree that the Agency’s dismissal of claim (2) was
improper, insofar as a proposed removal is the kind of action that a reasonable employee
would find to be materially adverse and could dissuade him from engaging in protected
activity,1

we find that further processing of this claim at the Agency level is precluded given
that the removal was effected, and Complainant filed a mixed appeal with the MSPB, from
which he has the right to petition the Commission for review. For these reasons, we AFFIRM
the Agency’s final decision.

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 parties should take note that effective September 24, 2012, the Commission revised 29
C.F.R. § 1614.107(a)(5) as follows: Prior to a request for a hearing in a case, the agency
shall dismiss an entire complaint that is moot or alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is discriminatory, unless the
complaint alleges that the proposal or preliminary step is retaliatory.

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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.

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
0120121976

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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