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

Equal Employment Opportunity Commission

Mar 12, 2014

0120113515 (E.E.O.C. Mar. 12, 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
Agency.

Appeal No. 0120113515

Hearing No. 410-2009-00395X

Agency No. 4H-310-0016-09

DECISION
On July 9, 2011, Complainant filed an appeal from the Agency’s June 6, 2011 final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621 et seq

. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the
Agency’s Post Office in Warner Robins, Georgia. On March 30, 2009, Complainant filed an
EEO complaint wherein he claimed that the Agency discriminated against him on the bases of
his race (African-American), color (Black), and age (55) when:

1. In November 2008, he was informed of a malicious and false comment made by his
Manager which resulted in him receiving an “Unsatisfactory” rating for his
performance evaluation.

2. On November 13, 2008, Complainant was notified that he was placed on a detail
assignment.

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
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Administrative Judge (AJ). Complainant timely requested a hearing. A hearing was held on
April 12, 2011. The AJ issued a decision on May 24, 2011.

The AJ found that no discrimination occurred. The record reveals that Complainant was
serving as Postmaster at the Warner Robins facility when during the Summer of 2007, a new
Manager of Postal Operations began service. The AJ stated that Complainant and the Manager
had a strained relationship as the Manager was critical of Complainant’s performance.
Complainant was sent on a detail to the District Office toward the end of 2007. Complainant
subsequently returned to his Postmaster position at Warner Robins. After serving as
Postmaster continuously at Warner Robins from April 2008 through October 2008,
Complainant received his performance evaluation. The record reflects that Complainant
received as his annual rating a score of four on a scale of one to ten. The AJ stated that the
Agency utilized a series of objective measurements, and these measurements determined
approximately 90% of the rating. The Manager provided input that reflected ten percent of the
overall rating. Complainant’s rating on the numerical factors was slightly under 3.5, but the
Manager’s subjective rating of Complainant raised him slightly above a 3.5, and thus the
overall rating was rounded up to a four.

The AJ noted that the Manager presented several reasons for Complainant’s rating. Factors
cited included a high number of customer complaints that escalated to the District level, the
improper handling of grievances, the improper operation of a route adjustment and non-
compliance with a grievance settlement arising from the route adjustment and intervention from
the Manager was necessary to prevent liability due to noncompliance with the Glover
decision.1

The AJ observed that two other Postmasters received the same rating, each of
whom, like Complainant, was placed on a detail assignment. The AJ stated that the
Postmasters who retained their posts had higher ratings than Complainant. Complainant was
notified that he would be placed on a detail assignment. With regard to Complainant being
assigned a detail, the AJ observed that the Manager testified that he wanted a fresh set of eyes
at the Warner Robins facility. The Manager testified that his decision was influenced by the
relatively low scores at the facility.
The AJ found that Complainant failed to establish a prima facie case of discrimination under
the alleged bases. The AJ further found that to the extent Complainant may have established a
prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ stated that Complainant failed to show that the Manager made false or malicious
comments about his performance. The AJ considered the Manager’s comments to be
constructive criticism and not malicious. The AJ reasoned that the Manager signed off on a
performance evaluation that was based on factors beyond the control of the Manager and
Complainant. According to the AJ, the Manager’s subjective evaluation raised Complainant’s
rating to a four and made Complainant eligible for a pay raise. The AJ stated that

1 The Glover matter was a class action on behalf of individuals with disabilities that addressed
the Agency’s use of attendance as a factor in promotions. The settlement of the class action
restricted the Agency’s ability to do so.
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Complainant did not establish that any Postmaster with similar numerical ratings was treated
differently or that the Postmasters at the better performing facilities were given more
assistance.

The AJ observed that Complainant presented several arguments in an attempt to establish
pretext. Complainant contended that he was understaffed at his facility. Complainant noted
that he had an unusual number of individuals on injury status who were counted as full-duty
employees and he had to utilize 204B’s rather than fill a Supervisor’s position on a permanent
basis. Complainant presented evidence that he had favorable results on a customer feedback
review. Complainant argues that one of the other two Postmasters who was relieved of his
authority received preferential treatment because he was permitted to continue working at his
facility. Complainant contended that the practice of detailing Postmasters when Managers are
displeased with their performance does not adhere to Agency policy. Complainant maintained
that the individual at fault for the route survey was the employee who conducted it and not
him.

The AJ found that Complainant’s arguments and evidence were not sufficient to establish that
the Agency’s explanation for its actions was pretext intended to hide discriminatory intent.
With regard to the alleged understaffing at Warner Robins, the AJ stated that Complainant did
not prove that other Postmasters within the Manager’s jurisdiction were allotted more
assistance. As to Complainant’s favorable review on a customer satisfaction survey, the AJ
reasoned that this evidence did not defeat the fact that there were several customer complaints.
With respect to the route survey, the AJ stated that the Manager testified that he believed
Complainant could have done a better job of monitoring the route survey while it was being
conducted. The AJ noted that Complainant did not present evidence to challenge the
Manager’s position. Further, the AJ observed that Complainant did not refute the Manager’s
assertion that the grievance settlement addressing the route survey was not implemented in a
timely manner despite the Manager’s instruction to him to effectuate the settlement.

With respect to the comparison who allegedly received preferential treatment because he was
allowed to remain at his facility, the AJ did not find that argument persuasive and also
reasoned that this Postmaster and Complainant were not similarly situated. As for the claim
that the detailing of Complainant was allegedly contrary to Agency policy, the AJ stated that
the evidence does not reflect unequal treatment. The Agency policy was that if a Postmaster
was not performing, he should be placed on a performance improvement plan and subjected to
discipline if improvement does not occur. However, the AJ noted that the practice of utilizing
details instead was widespread and ongoing, and not applied in an unusual manner to
Complainant.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged. Thereafter, Complainant
filed the instant appeal.

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STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant established a prima facie case of discrimination
under the alleged bases. The Agency presented several factors that dictated the comments and
consequent decision to assign Complainant a performance rating of four and to issue him a
detail assignment. The Agency explained that the Warner Robins facility was underperforming
and that Complainant experienced problems in customer complaints, a route survey and the
implementation of a grievance settlement related to the survey, the improper handling of
grievances, difficulty in adhering to the Glover decision and that the percentage of carriers
who were working beyond 5:00 p.m. was unacceptable. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions.

We observe that Complainant has not presented any argument or evidence on appeal. Upon
review of the arguments and evidence presented by Complainant at the hearing, we agree with
the AJ’s aforementioned reasoning that these contentions did not establish pretext. It is evident
that Complainant was confronted with a difficult job given that his facility was understaffed;
however, the evidence does not warrant the conclusion that he was treated differently than
similarly situated individuals outside of his protected classes with respect to the matters at issue
for prohibited reasons. The Agency’s determination in its final decision that no discrimination
occurred is AFFIRMED.

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:

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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
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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

Date
March 12, 2014