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

Equal Employment Opportunity Commission

Apr 23, 2014

0120123407 (E.E.O.C. Apr. 23, 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
(Pacific Area),
Agency.

Appeal No. 0120123407

Hearing No. 480-2010-00490X

Agency No. 4E-890-0022-10

DECISION
Complainant filed an appeal from the Agency’s July 19, 2012 Final Order concerning her
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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 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 worked as a Bulk Mail
Technician at the Agency’s Las Vegas Processing and Distribution Center facility in Las
Vegas, Nevada. On March 12, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (White), sex (female), age (47), and
retaliation for protected EEO activity when:

On November 19, 2009, Complainant received a Notice of Removal for unacceptable
attendance effective December 21, 2009.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency’s August 17, 2011 motion for a decision
without a hearing and issued a decision without a hearing on July 12, 2012.
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In her Decision, the AJ found that Complainant failed to establish a prima facie case of
discrimination based on race, sex, or age because she failed to identify any similarly situated
employees not in her protected classes, who were treated better than she was treated under the
same or similar circumstances. Specifically, the AJ found that in the two years prior to
Complainant’s removal, she had received progressive discipline on numerous occasions for
attendance issues including six occasions upon which she received no-time off suspensions.
The AJ found that Complainant did not identify any other employees who had received
progressive discipline as Complainant had received, who were not also removed for additional
time and attendance problems. The AJ noted that among the employees Complainant identified
for comparison, were those who share one or more of Complainant’s basis for which she filed
the instant complaint. Some identified employees were also female, others were the same age
as Complainant or older, and many were the same race as Complainant. The AJ found that
none of the identified employees had received any discipline for time and attendance issues as
Complainant had received during the same time frame.

Regarding Complainant’s reprisal claim, the AJ found that Complainant established a prima
facie case of reprisal discrimination because she had recently participated in EEO activities,
including mediation of a prior complaint in which the same responsible management official,
S2, was identified. The AJ found, that even assuming Complainant established a prima facie
case on all bases, that the Agency articulated legitimate, nondiscriminatory reasons for its
actions.

Specifically, the AJ found the undisputed evidence showed that between July 2009 and October
2009, Complainant’s time and attendance records included number infractions, for which
Complainant was subjected to two investigative interviews. The AJ found that in the wake of
the previous discipline Complainant had received for the same or similar attendance issues, the
Agency reminded Complainant of her obligation to be regular in attendance and when
Complainant’s attendance issues continued, S2, Complainant’s second level supervisor,
proposed Complainant’s removal. The AJ found Complainant presented no evidence that
other employees had received the same progressive discipline that Complainant received, and
accordingly, no other employees were facing removal as Complainant was facing when
Complainant continued to arrive late, take long or short lunch breaks, or have other
unscheduled absences. The AJ found no evidence from which an inference of reprisal
discrimination could be drawn and no evidence that the Agency’s reasons for proposing
Complainant’s removal were false and a pretext to mask discrimination.

The AJ concluded that the material facts were undisputed and that Complainant had not
presented evidence from which a trier of fact could conclude that she had been subjected to
discrimination on any basis as alleged. The Agency subsequently issued a Final Order adopting
the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

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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). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition. See Petty v. Dep’t of
Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of
one party without holding a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to
respond to such a statement, and (4) the chance to engage in discovery before responding, if
necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment
“where the [party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing
context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a
hearing. Cf.

29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
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). He must generally establish a prima facie case by demonstrating that he
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). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must
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prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force

, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find the AJ properly issued her Decision without a hearing. We concur
with the AJ that the material facts are undisputed. We find, as did the AJ, that Complainant
initially identified eight other employees that she claims were treated better than she was
treated. Complainant later added three more employees for comparison. Complainant states
that these 11 employees also had attendance infractions but S2 did not propose their removal.
We find Complainant does not dispute the Agency’s evidence regarding the majority of
occasions upon which she was late for work, returned late from lunch, failed to call in as
required, and otherwise accumulated excessive unscheduled absences from her work from July
2009 through October 2009. We find, as did the AJ, no evidence that the Agency’s time and
attendance records were false. Given Complainant’s progressive discipline for attendance
issues, we find she was not similarly situated to the comparative employees she has named.
Therefore, we find that the Agency properly found that Complainant failed to prove that she
was discriminatorily removed.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

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
April 23, 2014