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

Equal Employment Opportunity Commission

Sep 19, 2014

0120130397 (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
(Western Area),
Agency.

Appeal No. 0120130397

Hearing No. 541-2012-00026X

Agency No. 4E-800-0077-11

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
November 15, 2012 final Agency decision (FAD) 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’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales, Services,
and Distribution Associate at the Agency’s Downtown Station in Denver, Colorado. On
February 1, 2011, Complainant and the Acting Supervisor (AS) had a verbal confrontation.
AS instructed Complainant to help open and unload the dock, and Complainant objected and
asked why another employee was not asked to do it. AS instructed another employee to go to
the dock and asked Complainant to scan. Complainant did not follow the instruction and said
“don’t talk to me like that” and got into AS’s path. AS felt threatened and overheard
Complainant yelling on the workroom floor after she gave him instructions over the
loudspeaker. AS felt that Complainant’s behavior was threatening and, as a result, placed him
on emergency placement in off-duty status. Complainant returned for an investigative
interview on February 2, 2011, and returned to duty on February 5, 2011.

On June 20, 2011, the Customer Services Manager (M1) instructed Complainant to report to
the window to relieve an employee for a break. Complainant did not immediately report to the
0120130397

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window and continued to case mail for approximately eight more minutes before changing into
his proper uniform and reporting to the window. M1 held an investigative interview with
Complainant, and he could not provide an explanation for why he failed to immediately follow
her instructions. Based on Complainant’s prior disciplinary history, M1 issued Complainant a
Letter of Warning for failing to follow instructions.

On May 23, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and in reprisal
for prior protected EEO activity when:

1. On February 1, 2011, management called the police and had him escorted from the
building, resulting in a shortage in his paycheck; and

2. On June 27, 2011, he was issued a Letter of Warning for Failure to Follow
Instructions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew his
request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), the Acting Supervisor
(AS) affirmed that she placed Complainant in emergency placement and had him escorted out
of the building because he refused her direct and very specific instructions to perform certain
duties and instead got very close to her, obstructed her, and said “don’t talk to me like that.”
AS stated that she felt threatened and feared that Complainant was a threat to himself and
others. As a result and pursuant to the collective bargaining agreement, she placed him on
emergency placement in off-duty status.

With respect to claim (2), M1 confirmed that she issued Complainant the Letter of Warning
after he failed to immediately report to the window to relieve an employee as she had
instructed. M1 added that Complainant failed to immediately report and instead continued to
case mail for approximately eight minutes. Complainant claimed that he needed to change into
his uniform shirt; however, M1 stated that she was aware he was not in a uniform shirt when
she gave her instructions, but that Complainant continued to case mail for eight minutes before
he went to change. M1 cited the collective bargaining agreement in support of her decision to
issue the Letter of Warning.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

0120130397

3

CONTENTIONS ON APPEAL
On appeal, Complainant argues that he has shown that management officials acted with
discriminatory animus and denied that he engaged in threatening behavior. Further,
Complainant contends that he followed M1’s instructions to report to the window, but it took
some time to finish sorting the mail and to retrieve his uniform shirt from his car.
Complainant questions why M1 kept track of his whereabouts, but did not confront him at any
time after her instructions to tell him to go immediately to the window. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
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 he 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. 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).
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), AS affirmed that Complainant was upset
that she instructed him to help open and unload the dock on February 1, 2011. ROI, at 97.
AS stated she told Complainant that he could scan and she would ask a co-worker to unload the
dock, but Complainant obstructed her, got very close to her, and told her “don’t talk to me like
that” Id. at 97. AS stated that she instructed Complainant over the loudspeaker to help unload
the dock, because she did not want to approach him again after his threatening behavior. Id.
AS maintained that Complainant still failed to comply with her instructions, and she could hear
him yelling on the workroom floor. Id. As a result, AS placed Complainant in emergency
placement and had him escorted out of the building because he engaged in threatening
behavior. Id

.
Regarding claim (2), M1 stated that she instructed Complainant to report to the window to
relieve an employee and instead of immediately reporting as instructed, Complainant continued
to case mail for approximately eight more minutes before going to change into his uniform
shirt. ROI, at 105. M1 held an investigative interview with Complainant, and he was unable
to provide any explanation for why he failed to follow instructions. Id. Therefore, M1 issued
Complainant a Letter of Warning for failing to follow instructions.
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Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Complainant can do this directly by showing that the Agency's
proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine

, 450
U.S. at 256.
As Complainant chose to withdraw his request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented.
Beyond Complainant's bare assertions, the Commission finds that there is no persuasive
evidence in the record that Complainant’s protected classes played a role in the Agency's
actions at issue. At all times, the ultimate burden remains with Complainant to demonstrate by
a preponderance of the evidence that the Agency's reasons were not the real reasons and that
the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to
carry this burden. As a result, the Commission finds that Complainant has not established that
he was subjected to discrimination or 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 decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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
0120130397

5
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
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