Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jun 20, 2013

0120120414 (E.E.O.C. Jun. 20, 2013)

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,
Agency.

Appeal No. 0120120414

Hearing No. 410-2010-00171X

Agency No. 4H-300-0198-09

DECISION

On October 21, 2011, Complainant filed an appeal from the Agency’s September 16, 2011
final order concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e 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 Rural Carrier at
the Agency’s post office in Buford, Georgia. On October 3, 2009, Complainant filed an EEO
complaint wherein he claimed that the Agency discriminated against him on the bases of his
national origin (Hispanic), sex (male), religion (Jehovah's Witness), and in reprisal for his
prior protected EEO activity when he was removed from employment with the Agency on July
12, 2009. 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
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing
on July 12, 2011, and issued a decision on September 8, 2011.1

1 Prior to the hearing, Complainant withdrew his claims of religion and sex discrimination.
0120120414

2
The AJ found that no discrimination occurred. The AJ observed that Complainant had
previously been disciplined via two letters of warning and three suspensions. The AJ stated
that even if a prima facie case had been set forth, the Agency fulfilled its burden of articulating
a legitimate, nondiscriminatory reason for the removal, namely that Complainant was removed
because he left 27 pieces of first class mail in his case.2

The AJ found that although
Complainant and a Hispanic Agency official testified as to feeling that they have been
discriminated against, neither presented any specific examples of national origin
discrimination. 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.
Thereafter, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

We shall assume arguendo that Complainant established a prima facie case of national origin
discrimination and reprisal with respect to his removal. We further find that the Agency
articulated a legitimate, nondiscriminatory reason for Complainant’s removal by referencing
the undelivered first class mail in Complainant’s case. The Acting Manager, Customer
Services, stated that there was no mail in Complainant’s case prior to his return from delivery,
and there were no dispatches that came into the facility with first class mail while Complainant
was out on his route. This official further stated that Complainant was well aware that he was
supposed to clear his case because he had been issued a fourteen-day suspension for the same
offense.

Complainant attempts to establish pretext by arguing that he did not fail to deliver any first
class mail assigned to him on the day in question and that the mail could have been placed in
his case by several individuals. Complainant also claims that a Hispanic Supervisor was
required to concur with the Notice of Removal even though he had no knowledge of what

2 The AJ noted that Complainant established that four of the 27 first class items could not have
been delivered but that still left 23 pieces of first class mail.

0120120414

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occurred. Complainant maintains that this official was utilized so a Hispanic would appear to
be involved in the removal decision, thus negating the likelihood of national origin
discrimination. At the hearing, this same official testified that he was instructed to sign off on
the Notice of Removal and that he thought he was involved because it would look better if a
Hispanic was involved in the discipline. However, upon review of the transcript, we agree
with the AJ that his testimony was vague and too speculative to support a finding of unlawful
animus. We further conclude that Complainant did not offer persuasive evidence that the first
class mail was placed in his case by someone so as to render him culpable. We find that
substantial evidence in the record supports the AJ’s finding that no discrimination occurred.
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
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).
0120120414

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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

June 20, 2013
Date