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

Equal Employment Opportunity Commission

Mar 6, 2014

0120130051 (E.E.O.C. Mar. 6, 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
(Eastern Area),
Agency.

Appeal No. 0120130051

Hearing No. 532-2010-00140

Agency No. 1C-404-0006-10

DECISION
On October 2, 2012, Complainant filed an appeal from what became the Agency’s 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. 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 order.

BACKGROUND
In August 2009, Complainant, a Mail Processing Clerk, was involuntarily reassigned from a
mail facility in Cleveland, Ohio to the Agency’s Processing & Distribution Center in
Lexington, Kentucky. The reassignment occurred due to declining mail volumes and the
closing of the airport mail facility in Ohio. Complainant never reported for work in
Lexington.

On March 9, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of reprisal for prior protected EEO activity when:

1. he was removed, effective December 22, 2009; and
2. he received letters of demand and a “Total Due” statement in February 2010.

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. After both parties
submitted motions for summary judgment, the AJ assigned to the case issued a decision
granting the Agency’s motion on September 4, 2012.

In his decision, the AJ found that Complainant failed to establish a prima facie case of
retaliation because there was absolutely no evidence from which a reasonable fact finder could
conclude that any of the responsible management officials involved had any knowledge of his
prior EEO activity. In fact, they did not even know Complainant. Even assuming that there
was sufficient evidence to support an inference of retaliation, the AJ found that the Agency
articulated legitimate, nondiscriminatory reasons for its actions.

With regard to the removal, Complainant never reported to work and repeatedly failed to
respond to the Lexington management’s requests for information about his status. He also
failed to report for a pre-disciplinary interview concerning his ongoing absence and AWOL
status. With regard to the letters of demand, since Complainant was no longer a wage earning
employee, his portion of the payment for his health benefits could not be deducted from his
check. Therefore, the Agency issued the letters in an effort to collect the unpaid employee
contribution for his health benefits. As to the “Total Due” statements, these documents simply
informed Complainant the total amount he owed for his portion of the health benefits. The AJ
concluded that Complainant offered no evidence from which a reasonable fact finder could
conclude these explanations were a pretext for retaliation. 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
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp.

, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case.
Upon review of the record, we discern no basis to disturb the AJ’s decision. The evidence is
insufficient to support a prima facie case of retaliation. Further, Complainant was unwilling to
report to work and unwilling to explain why. There are no material facts in dispute.
Accordingly, the Agency’s final order 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
0120130051

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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 6, 2014