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

Equal Employment Opportunity Commission

Jun 27, 2013

0120121389 (E.E.O.C. Jun. 27, 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. 0120121389

Agency No. 4J-600-0145-10

DECISION

On July 5, 2011, Complainant filed an appeal from the Agency’s May 31, 2011 final decision
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. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales & Service
Distribution Clerk at the Agency’s post office in Maywood, Illinois. On November 3, 2010,
Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against
him on the bases of his race (African-American) and in reprisal for his wife’s prior protected
EEO activity when on August 27, 2010, he was issued a Notice of Removal for Unacceptable
Conduct. 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). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency explained that Complainant was issued a Notice of Removal based on
Unacceptable Conduct for utilizing a Supervisor’s identification and password to access the
time and attendance control system (TACS) to make changes to his own records. He also
accessed TACS with his own identification without authorization while not on duty as a
204B/acting supervisor. Although Complainant denied making adjustments to his own time
and attendance records, an investigation revealed approximately 98 discrepancies where
Complainant’s attendance records were altered by someone using the Supervisor’s
identification on her non-scheduled day when she was on annual, sick or holiday leave between
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September 23, 2006 and September 12, 2009. The Agency noted that Complainant was on
duty each day a discrepancy was created on his attendance records. Complainant
acknowledged that he had not worked as an acting supervisor and did not have permission to
log into TACS for his personal use. The Agency cited ELM Section 665.44 Falsification in
Recording Time which states that any employee knowingly involved in such a procedure is
subject to removal or other discipline.

The Agency determined that Complainant established a prima facie case of reprisal based on
his wife having filed an EEO complaint against the Postmaster that was ongoing during the
relevant time period. In terms of race discrimination, Complainant cited three comparison
employees, who were all the same race as he. Complainant stated that one of these employees
had been observed shopping at a mall while she was on the clock and that she only received a
discussion. With respect to the other two comparisons, Complainant stated that they were
acting supervisors who worked in different offices and input each other’s times into TACS
even though they could not have known the other was at work. According to Complainant,
neither employee received discipline from the Postmaster.

The Agency observed that each of the comparisons, like Complainant, is African-American.
With regard to the first comparison, the Agency stated that she did not engage in the same type
of conduct as Complainant. The Postmaster indicated that this employee’s infraction was not
sufficiently severe to warrant removal. The Agency determined that the other two
comparisons were not similarly situated to Complainant given that they were working as
supervisors and had the authority to access TACS. The Agency determined that Complainant
failed to establish a prima facie case of race discrimination.

Assuming arguendo that Complainant had established a prima facie case of reprisal and race
discrimination, the Agency determined that it articulated a legitimate, non-discriminatory
explanation for its removal of Complainant. The Agency stated that an investigation disclosed
some timekeeping improprieties committed by several employees, including Complainant.
According to the Agency, two supervisors were also issued removal notices for timekeeping
misconduct. The Agency stated that Complainant was issued the removal notice because he
received overtime adjustments on 98 occasions using a Supervisor’s identification.

With regard to Complainant’s attempt to establish pretext, the Agency noted that Complainant
claimed the Postmaster referred to himself as the “head n----- in charge” and hired or
transferred into the facility only Black women and fired or transferred Black men who would
not be subservient. Complainant argued that the Postmaster wanted to terminate him in
retaliation for him supporting his wife and her EEO complaint against him. The Agency noted
that the Postmaster denied making the statement about being the “head n----- in charge.” The
Agency also stated that the other employee who had access to the Supervisor’s identification
and password was not on the clock on each occasion that adjustments were made to
Complainant’s time records. The Agency determined that Complainant offered no evidence to
establish that its explanation for issuing the Notice of Removal was untrue or otherwise a
pretext for discriminatory intent. Thereafter, Complainant filed the instant appeal.
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ANALYSIS AND FINDINGS

We shall assume arguendo that Complainant established a prima facie case of reprisal and race
discrimination. The Agency explained that Complainant was issued a Notice of Removal due
to the numerous overtime adjustments inputted by Complainant while improperly using his
Supervisor’s log on identification. Complainant was also cited for logging into the time and
attendance system using his own identification and password on approximately fourteen
occasions despite not having authorization. We find that the Agency presented legitimate,
nondiscriminatory reasons for issuing a Notice of Removal.

Complainant attempts to establish pretext by arguing that he was removed without just cause
and that the Postmaster retaliated against him in response to his wife’s EEO complaint.
Complainant stated that he had no prior discipline and that the rules were not applied fairly to
him. Complainant referenced the three comparisons who received no or lesser forms of
discipline. Upon consideration of these arguments and the evidence in the record, we find that
Complainant has failed to establish that the Agency’s explanation was pretext intended to hide
discriminatory motivation. The comparisons cited by Complainant were all in the same
protected group (African-American) as he and they were not similarly situated to him. Two of
the comparisons were working as supervisors and had authorization to access TACS and the
other comparison did not commit a similar offense. The relevant ELM regulation states that
any employee knowingly involved in falsification in recording time is subject to removal or
other discipline. We observe that the other two individuals cited for this violation were also
issued Notices of Removal. We discern no persuasive evidence to support Complainant’s
claim of reprisal and race discrimination.

CONCLUSION

The Agency’s determination in its final decision that no discrimination occurred 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:

0120121389

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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

June 27, 2013
Date