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

Equal Employment Opportunity Commission

Jan 7, 2015

0120133056 (E.E.O.C. Jan. 7, 2015)

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. 0120133056

Hearing No. 570-2012-00690X

Agency No. 1K-221-0017-11

DECISION
On August 28, 2013, Complainant filed an appeal from the Agency’s July 26, 2013 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.

Our review is de novo. 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 an Automation
Clerk at the Agency’s work facility in Merrifield, Virginia. On August 8, 2011, Complainant
filed an EEO complaint wherein he claimed that the Agency retaliated against him when:

1. On June 2, 2011, Complainant’s machine was deliberately mislabeled in an attempt
to charge him with delaying the mail.

2. On June 6, 2011, Complainant was issued a Letter of Warning for Improper
Conduct/Failure to Follow Instructions/Disrespecting a Postal Manager.

The Agency accepted claim (2) for investigation. Claim (1) was dismissed pursuant to 29
C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim. The Agency stated that
Complainant was not subjected to any adverse action or denied any entitlement with regard to a
term, condition, or privilege of his employment as a result of the alleged incident. At the
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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 summary judgment and issued a decision
on July 2, 2013.

The AJ found that no reprisal occurred with regard to claim (2). The AJ stated that on or
about June 2, 2011, Complainant stated that he noticed three trays, containing approximately
200 labels, were incorrect on the Delivery Barcode Sorter (DBS) machine that he was
operating. Complainant requested that the Manager review the labels and confirm their
accuracy. The Manager confirmed that several labels were incorrect, and he told Complainant
he would look into the matter. Complainant speculated that someone tampered with the DBS
machine to get him in trouble. The Manager informed Complainant that he would contact the
Agency’s Inspection Service to initiate an investigation. The Manager instructed Complainant
to return to his work station several times, and Complainant refused. According to the
Manager, two Supervisors stated that they overheard Complainant say “F__k you” in his
direction. The AJ found that Complainant did not deny making the statement. The Manager
instructed a Supervisor to remove Complainant from the workroom floor and conduct a pre-
disciplinary interview. Complainant was subsequently issued a Letter of Warning, which was
later reduced to an official discussion through the grievance process.

The AJ found that Complainant failed to establish a prima facie case of reprisal. The AJ
reasoned that the Letter of Warning was reduced to an official discussion and no longer
constituted an adverse employment action. Moreover, the AJ found that the record is devoid
of any evidence that the Agency’s proffered reasons were a pretext for unlawful
discrimination. 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.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the deliberate mislabeling of his DBS machine was the
central focus of his complaint and that the Letter of Warning was not his real claim.
Complainant maintains that the Manager and a Supervisor of Distribution Operations
committed the mislabeling. According to Complainant, Agency management and the Office of
the Inspector General conspired to deny his credibility and negate his claim. In addition,
Complainant now denies that he uttered the epithet at the Manager that led to the pre-
disciplinary interview and the Letter of Warning.

In response, the Agency asserts that Complainant failed to timely challenge the dismissal of
claim (1). The Agency states that the AJ allotted Complainant thirty days to challenge the
dismissal of the mislabeling claim but that he failed to do so. The Agency also argues that
Complainant failed to follow instructions and that, aside from disrespecting a Manager, was
enough to warrant discipline.

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ANALYSIS AND FINDINGS
It is evident from Complainant’s appeal that he is challenging the dismissal of claim (1). We
shall review that dismissal. The record indicates that Complainant suffered no harm to a term,
condition, or privilege of his employment as a result of the alleged deliberate mislabeling of
the labels. The Letter of Warning that was issued to Complainant was not issued based on any
delay in the mail but rather Complainant’s insubordinate conduct. Thus, we find that
Complainant was not rendered aggrieved by the alleged deliberate mislabeling, and the
Agency’s dismissal of this claim is AFFIRMED.

With regard to claim (2), we shall assume arguendo that Complainant set forth a prima facie
case of reprisal. The Agency stated that Complainant was issued the Letter of Warning based
on Complainant’s improper conduct, failure to follow instructions and his disrespecting of the
Manager. The Agency noted that Complainant refused the Manager’s instructions to return to
his workstation, acted belligerently, and cursed at the Manager. We find that the Agency
articulated legitimate, nondiscriminatory reasons for its issuance of the Letter of Warning.

Complainant denies on appeal that he cursed the Manager. Even if we assume that
Complainant did not curse, he has not denied that he failed to return to his workstation despite
being instructed to do so several times by the Manager. We agree with the Agency that this
was enough to warrant discipline. Thus, we find that Complainant has failed to establish that
the Letter of Warning was unlawfully motivated.

CONCLUSION
The Agency’s dismissal of claim (1) on the grounds of failure to state a claim and its
determination in its final order that no discrimination occurred as to claim (2) 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:

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
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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
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 Date
January 7, 2015
Office of Federal Operations