Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 6, 20140120130051 (E.E.O.C. Mar. 6, 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. 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 0120130051 2 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: 0120130051 3 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 4 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 Copy with citationCopy as parenthetical citation