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

Equal Employment Opportunity Commission

Sep 19, 2014

0120130133 (E.E.O.C. Sep. 19, 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
(Southeast Area),
Agency.

Appeal No. 0120130133

Hearing No. 510-2011-00449X

Agency No. 56-000-0003-11

DECISION
On July 27, 2012, Complainant filed an appeal from the Agency’s June 22, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq

. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Criminal
Investigator at the Agency’s facility in Miami, Florida. On March 1, 2011, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases of her sex
(female) and disability (knee injury) when: (1) on November 1, 2010, management issued
Complainant a proposed letter of warning (LOW) in lieu of a 3-day suspension which was later
upheld; and (2) when on December 22, 2010, and January 3, 2011, management denied
Complainant’s requests to smart work (telework).1

1 In her formal complaint, Complainant also alleged that since December 15, 2009, her former
supervisor continually treated his female subordinates less favorably than his male
subordinates. The Agency issued a partial dismissal, dated March 1, 2011, dismissing this
claim, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Upon review, we
find that the Agency’s dismissal was appropriate as Complainant failed to show that she is
aggrieved as she did not identify any harm or loss with respect to a term, condition, or

0120130133

2

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 timely requested a hearing. The AJ found that, after
viewing the evidence in a light most favorable to Complainant, a decision without a hearing
was appropriate as there were no genuine issues of material fact in dispute. The AJ issued a
decision without a hearing on June 13, 2012, finding no discrimination. 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. On appeal, Complainant contends
that the AJ erred in finding no discrimination and reiterates her contention that she was
subjected to unlawful discrimination. Additionally, Complainant raises claims which were not
accepted as part of the instant complaint and, as such, will not be addressed in this decision.

ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final decision issued without a
hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). 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 102, 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, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate

privilege of employment for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). We note that Complainant did not argue to the
AJ that this dismissal was improper.
0120130133

3
treatment claim, 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 Construction 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, non-
discriminatory reason for its actions. Texas Department of Community 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 (2000).
Here, we find that assuming, arguendo, Complainant established a prima facie case of sex and
disability discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. With respect to claim (1), the record shows that Complainant suffered
an on-the-job injury in June 2010, and as a result accepted a temporary limited duty assignment
at the Agency’s West Palm Beach facility until December 13, 2010. While on limited duty,
Complainant was not assigned a government vehicle. The record shows that Complainant
returned to regular duty on or about January 10, 2011. On November 1, 2010, management
issued Complainant a notice of proposed LOW in lieu of time-off suspension for unprofessional
conduct and violation of agency policy and the terms of her limited duty job offer. Specifically,
the LOW states that on October 14, 2010, Complainant called her supervisor (S1) and
questioned his decision to reassign one of her investigations to another agent. S1 states that
during that phone call, Complainant acted disrespectfully by raising her voice and accusing
him of lacking integrity. The LOW also states that on October 15, 2010, Complainant drove
her personal vehicle to the Agency’s facility in Miramar, Florida, without obtaining prior
permission from management, which is a violation of Agency policy. Finally, the LOW states
that traveling to the Miramar facility was a violation of her limited duty assignment.
Complainant appealed the LOW, stating that she did not act disrespectfully toward S1, and that
use of her personal vehicle to perform duties at the Miramar facility was not a violation of
Agency policy. By letter dated January 10, 2011, management upheld the issuance of the
discipline.

Although Complainant argues that the actions cited in the LOW were not violations of Agency
policy, we note that the Commission cannot second guess an Agency’s business decision, such
as disciplinary decisions, but can focus only on the motivation for such decisions. Texas Dep’t
of Comm. Affairs v. Burdine, 450 U.S. 248, 249 (1981); Complainant v. Dep’t of Veterans
Affairs

, EEOC Appeal No. 0120120543 (April 17, 2014). Beyond Complainant’s bare
assertions and subjective beliefs, there is no evidence in the record that the Agency’s issuance
of the LOW was motivated by discriminatory animus toward her sex or disability. As such, we
find that Complainant failed to show that the Agency’s legitimate, nondiscriminatory reasons
for its actions were a pretext for discrimination.
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With respect to claim (2), the record shows that Complainant requested that she be allowed to
telework on December 22, 2010, and January 3, 2011, and that approval of telework requests
is at the discretion of management. S1 states that he denied Complainant’s requests to telework
on the dates at issue because Complainant was on temporary limited duty at that time and the
duties she was assigned could best be performed in the office. The record further shows that
once Complainant returned to regular duty, S1 approved her requests for telework. We find
that Complainant has not shown that the Agency’s denial of her telework requests was
motivated by discriminatory animus toward her sex or disability, or that the Agency’s
articulated reasons were pretextual.

CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and 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:

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
0120130133

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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
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
September 19, 2014