Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 21, 20140120122212 (E.E.O.C. Mar. 21, 2014) Copy Citation 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 (Eastern Area), Agency. Appeal No. 0120122212 Hearing No. 470-2011-00229X Agency No. 1C-401-0040-10 DECISION Complainant filed an appeal from the Agency’s April 13, 2012 Final Order 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. For the following reasons, the Commission AFFIRMS the Agency’s Final Order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed at the Agency's Louisville Processing & Distribution Center in Louisville, Kentucky. On October 15, 2010, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when: Complainant was terminated from his position as a Casual Motor Vehicle Operator1 on June 30, 2010. In his complaint, Complainant described that he was terminated from that position because mail was dropped from the back of his truck. Complainant also stated that a female casual driver committed a similar infraction, but was not charged with an accident and was not 1 We note that witnesses and record documents describe Complainant’s position as “vehicle operator,” “tractor trailer operator,” and also “motor vehicle operator,” which terms appear to all describe an employee who operates the Agency’s tractor trailer vehicles. 0120122212 2 terminated. The record shows that on the same day he was terminated, Complainant accepted a reassignment to a Casual Mail Processing Clerk position by the Agency. Previously, in v. U.S. Postal Serv. , EEOC Appeal No. 0120110998 (May 4, 2011), the Commission reversed the Agency’s dismissal of Complainant’s complaint. The Commission ordered the Agency to resume processing Complainant’s complaint at the point where processing previously ceased. 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 requested a hearing and the AJ held a hearing on February 23, 2012. The AJ issued his Decision finding no discrimination on March 29, 2012. In his Decision, the AJ found that Complainant failed to identify any other employees, not in his protected class, who were treated any better than he was under the same or similar circumstances. Specifically, the AJ considered that Complainant identified four employees he believed had received preferential treatment. Those four employees were also male, however, and accordingly, did not establish Complainant’s prima facie case of sex discrimination. Complainant, the AJ found, also identified one female casual vehicle operator that Complainant stated had been treated better than he was because Complainant stated that she (E1) had dropped mail from her truck, but was not disciplined, much less removed from her position, as Complainant was. The AJ found the evidence did not establish that mail had dropped out of E1’s truck as Complainant claimed. Specifically, E1 denied that she had ever dropped mail, no documents existed to confirm that E1 had any incident with dropped mail as Complainant had suggested, and E1’s supervisor, S1, was unaware of even rumors to that effect until shortly before the hearing. The AJ found no evidence to support Complainant’s claim that E1 had been involved with a similar incident. Accordingly, the AJ found that Complainant did not identify any similarly situated employees, not in his protected group, who were treated better than he was. The AJ further noted no dispute in the evidence that a casual employee, such as Complainant, found to have been at fault in an incident or accident, faced termination, where, under the same circumstances, a permanent employee would likely receive a lesser form of discipline. The AJ concluded that Complainant did not show that he was subjected to discrimination as alleged. 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. ANALYSIS AND FINDINGS 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) 0120122212 3 (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). To prevail in a disparate treatment claim such as this, 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. Co. 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. Tex. 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). In the instant case, we find substantial evidence supports the AJ’s Decision. We note specifically, as did the AJ, that E1 denies that she was involved in an incident or accident in which she was responsible for mail falling out of a truck to which she was assigned and that no documentary evidence confirmed Complainant’s belief that she had been involved in a similar incident. We find the AJ properly concluded that Complainant failed to establish a prima facie case of discrimination based upon sex. We find nothing in the record indicates that the Complainant was treated more harshly than any other casual employee, when he was separated from the Agency for the incident described in his complaint. As the AJ noted, Complainant was also known to be a valuable employee, and despite the accident with the spilled mail, Complainant was offered (and accepted) a reassignment to a Clerk position within hours of his separation. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s Final Order finding no discrimination. 0120122212 4 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 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. 0120122212 5 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 March 21, 2014 Copy with citationCopy as parenthetical citation