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

Equal Employment Opportunity Commission

Feb 27, 2013

0120114189 (E.E.O.C. Feb. 27, 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
(Southeast Area),
Agency.

Appeal No. 0120114189

Hearing No. 510-2011-00079X

Agency No. 1H-338-0008-10

DECISION

On September 9, 2011, Complainant filed an appeal from the Agency’s 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 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 Supervisor,
Distribution Operations (SDO) at the Agency’s Processing & Distribution Center (P&DC) in
Lakeland, Florida. He had recently been reassigned to the Lakeland P&DC due to a Reduction
In Force. Complainant worked with two other SDOs on Tour One. On May 1, 2010,
Complainant was responsible for getting mail on the trucks prior to their dispatch.
Complainant did not have an adequate staff of Mail Handlers on hand to see that all the mail
was loaded and failed to verify that such was done before allowing the trucks to leave. The
trucks left without all of the mail. Similarly, on June 5, 2010, Complainant was again in
charge of the Mail Handlers and was instructed to require mandatory overtime of them at the
end of their tour because there was a late “Priority” expected, and it had to be loaded on the
trucks. Complainant failed to secure the mandatory overtime, and again the trucks left without
all of the mail. Complainant was not cooperative and responsive during at least one of the
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investigative interviews that resulted from the trucks being dispatched before they were fully
loaded.

On July 3, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of national origin (Hispanic), sex (male), age (57), and in reprisal for
prior protected EEO activity when he received two Letters of Warning In Lieu of Suspensions
for failing to follow instructions and improper conduct.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 but subsequently withdrew his request. Consequently,
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 subjected him to discrimination as
alleged. This appeal followed.
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 he or 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 804 n. 14. 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 Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Because Complainant argues that his fellow SDOs were not disciplined for similar infractions,
we will assume arguendo that Complainant established a prima facie case of discrimination on
all of his alleged bases.2

1 Discipline for the June incident was originally “Notice of 14 Day Suspension” but upon
review of the record, we find that this, like the May discipline, became a Letter of Warning In
Lieu of Suspension. See Complaint File at 206-07.
The Agency explained that the same Manager, Distribution
Operations (MDO) was on duty both of the nights the incidents occurred. MDO attested that
before any problems arose, she assigned responsibility among her three SDOs, and
Complainant was the SDO in charge of the Mail Handlers and responsible for loading all of the
mail onto the trucks prior to dispatch. In both instances, Complainant failed to fulfill his
responsibilities. This is a legitimate and nondiscriminatory explanation for the discipline
Complainant received. Complainant claims that the duties MDO claims were assigned to him
2 We note that one of these SDOs was later disciplined for a similar infraction.
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were not in fact his responsibilities, but he submits no evidence that supports that conclusion,
and we find nothing in the record to suggest MDO’s reason is unworthy of belief.

Complainant withdrew his hearing request. Thus, the Commission does not have the benefit of
an Administrative Judge’s credibility determinations after a hearing and can only evaluate the
facts based on the weight of the evidence presented. We find no evidence from which a
reasonable fact finder could conclude the discipline at issue was unlawfully motivated. For the
reasons set forth above, 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 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
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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

February 27, 2013
Date