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

Equal Employment Opportunity Commission

Dec 4, 2014

0120130604 (E.E.O.C. Dec. 4, 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. 0120130604

Hearing No. 480-2011-00429X

Agency No. 1F-904-0030-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s October 12, 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at
the Agency’s Los Angeles Network Distribution Center in Bell, California. On July 14, 2010,
the Distribution Operations Manager (M1) directed the management team to ensure that
employees were not clocking in prior to the start of their tours. In accordance with those
instructions, Complainant’s supervisor (S1) gave a series of stand-up talks to his unit, including
Complainant, advising them not to clock in prior to the start of their tours and to keep their
timecards in the rack during hours of operation. In addition, on July 23, 2010, S1 specifically
instructed Complainant to not clock in prior to the start of her tour and informed her of the
consequences of not following instructions. Despite these instructions, Complainant clocked in
prior to the start of her tour on three occasions in December 2010. S1 conducted an
investigative interview with Complainant and issued her a Letter of Warning on December 31,
2010, for failure to follow instructions.

Despite the Letter of Warning, Complainant continued to clock in early on numerous occasions
in late-December 2010 through mid-January 2011. On January 25, 2011, S1 held an
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investigative interview with Complainant. Based on Complainant’s prior disciplinary history
for similar conduct, S1 issued Complainant a Seven-Day No Time-Off Suspension for
unacceptable conduct, failure to follow instructions, and failure to observe schedule.

On February 4, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity when:

1. On December 31, 2010, Complainant was issued a Letter of Warning for Failure to
Follow Instructions/Failure to Observe Schedule; and

2. On January 28, 2011, Complainant was issued a Notice of Seven-Day No Time-Off
Suspension for Unacceptable Conduct/Failure to Follow Instructions/Failure to
Observe Schedule.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the
case granted summary judgment in favor of the Agency and issued a decision on September
21, 2012.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
reprisal and found that the Agency articulated legitimate, non-retaliatory reasons for its
actions. In particular, Agency management stated that Complainant had fair notice of the rule
prohibiting employees from clocking in early through several stand-up discussions attended by
all employees, but Complainant did so anyway and repeatedly. As a result, Complainant was
issued the Letter of Warning and subsequently, a Seven-Day No Time-Off Suspension. The
AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to reprisal as
alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision.
The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in granting summary judgment in favor of the
Agency as she has shown that the Agency retaliated against her. Further, Complainant argues
that she has shown that she did not violate any rules or policies. In addition, Complainant
contends that the record was not adequately developed, and she challenges the manner in which
the AJ handled discovery and pre-hearing matters. Accordingly, Complainant requests that the
Commission reverse the final order.

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ANALYSIS AND FINDINGS
The AJ’s Handling of the Case

As an initial matter, the Commission shall address Complainant's objections to the manner in
which the AJ managed and adjudicated her complaint. Complainant alleged that the AJ did not
allow the record to be fully developed through discovery and took other actions that prejudiced
her case. The Commission notes that EEOC regulations and Commission precedent provide
AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R.
§ 1614.109; see also

EEO MD-110, at 9-10. The Commission has reviewed the documentary
evidence in the record and finds no evidence that the AJ abused her discretion in any of her
discovery and pre-hearing rulings. Further, the Commission is unable to find any evidence of
bias, or other reversible error, resulting from the manner in which the AJ managed and
adjudicated this case.
Disparate Treatment/Reprisal

The Commission's regulations allow an AJ to grant summary judgment 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.
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 she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. To establish a prima facie case of reprisal,
Complainant must show that (1) she engaged in protected EEO activity; (2) the Agency was
aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the
Agency; and (4) a nexus exists between her protected activity and the adverse treatment.
Whitmire v. Dep't of the Air Force

, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143
(2000); St. Mary's Honor Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
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that she established a prima facie case of reprisal, Complainant failed to present evidence to
rebut the Agency's legitimate, non-retaliatory reasons for its actions. More specifically, S1
affirmed that he gave a series of talks on July 15, 16, and 20, 2010, to his unit instructing
them to not clock in prior to the start of their tours and about keeping their timecards in the
rack during operational hours. ROI, at 97. S1 stated that on July 23, 2010, he gave
Complainant specific instructions about not clocking in prior to the start of her tour and
informed her of the consequences of not following these instructions. Id. On December 26
through December 28, 2010, Complainant began her tour of duty prior to the scheduled start
time. Id. S1 held an investigative interview with Complainant on December 28, 2010, and
issued her a Letter of Warning for failure to follow instructions and clocking in prior to the
scheduled start of her tour of duty. Id

. at 97, 103.
S1 confirmed that Complainant’s conduct did not improve and she continued to clock in prior
to the scheduled start of her tour. ROI, at 98. Complainant clocked in early on nine occasions
at the end of December 2010 through January 16, 2011. Id. S1 held an investigative
interview with Complainant on January 25, 2011, and issued her a Seven-Day No Time-Off
Suspension for unacceptable conduct, failure to follow instructions, and failure to observe her
schedule. Id

. at 98, 108.
In attempting to establish that the Agency’s reasons are pretextual, Complainant argued that
she did not violate any rules or policies. The record indicates that Complainant’s conduct was
in violation of several Agency and District policies and regulations, and conflicted with
management’s instructions. ROI, at 108-09. While she may have disagreed with
management’s interpretation of these policies, there is simply no evidence to support a finding
that the Agency's motivation for its interpretation was retaliatory or applied to others in a
disparate manner. Thus, construing the evidence in the light most favorable to Complainant,
the Commission finds no evidence that Complainant's prior protected EEO activity was a
factor in any of the Agency's actions. As a result, the Commission finds no basis to disturb
the AJ’s summary judgment decision finding that Complainant was not subjected to reprisal as
alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred.

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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.

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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
December 4, 2014