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

Equal Employment Opportunity Commission

Mar 20, 2013

0120121558 (E.E.O.C. Mar. 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
(Capital Metro Area),
Agency.

Appeal No. 0120121558

Hearing No. 410-2011-00077X

Agency No. 4H-300-0233-10

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s January 18, 2012 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
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 City Carrier at the
Agency’s Post Office in Union City, Georgia. On March 8, 2010, a customer on
Complainant’s route filed a complaint against Complainant. The customer had placed a note in
her mailbox to Complainant regarding the non-delivery of her mail. The customer claimed
that Complainant then approached her door, stated that the “devil is busy,” made comments
about two co-workers who were trying to take her job and claimed that someone was messing
with the customer’s mail. Complainant told the customer that her mail has been in
Complainant’s box at the Post Office. The customer went to the Post Office to retrieve her
mail and when it was located, it was in poor condition and some items were meter-stamped
from December 2009. Complainant’s supervisor conducted an investigation into the matter
and determined that Complainant had improperly handled the customer’s delivery requests.
Complainant had at least three prior instances of disciplinary action including two previous
Notices of Removal. As a result, S1 issued Complainant a Notice of Removal based on her
improper conduct with the customer and failure to follow instructions.
0120121558

2
On August 12, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of disability, age (57), and in reprisal for prior protected
EEO activity when she received a Notice of Removal effective April 30, 2010.1

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. The AJ held a hearing on November 18,
2011, and issued a bench decision at the end of Complainant’s case-in-chief.
In his decision, the AJ determined that Complainant had multiple disciplinary actions dating
back to August 2007. In October 2009 and January 2010, Complainant was issued Notices of
Removal which were reduced to suspensions. On March 26, 2010, Complainant received a
third Notice of Removal from her supervisor (S1) after she received a customer complaint.
The third removal cited Complainant’s prior discipline, including two previous removals. The
AJ concluded that Complainant had not shown that her removal was based on discriminatory or
retaliatory animus. As a result, the AJ found that Complainant had not been discriminated or
retaliated against as alleged. The Agency subsequently issued a final order adopting the AJ’s
decision. Complainant failed to submit any arguments or contentions on appeal.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

As an initial matter, the Commission notes that there is no specific mechanism for a “directed
verdict” in the EEOC hearing process. However, under 29 C.F.R. § 1614.109(e), the AJ has
the power to regulate the conduct of the hearing, limit the number of witnesses where the
testimony would be repetitious, and exclude irrelevant evidence. The Commission finds
nothing improper in the AJ's actions prior to the hearing, during the hearing, or in his issuance
of a decision in favor of the Agency after Complainant presented her case and without hearing
the testimony of any witnesses on behalf of the Agency.

1 Prior to the hearing, Complainant amended her complaint to include disability and reprisal as
bases of discrimination.
0120121558

3

ANALYSIS AND FINDINGS

To prevail in a disparate 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). She must generally 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). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351
(Dec. 14, 1995).

Upon review, the Commission finds that the AJ's findings of fact are supported by substantial
evidence. The Commission finds that the Agency has articulated legitimate, nondiscriminatory
reasons for Complainant’s removal. Specifically, S1 testified that he initiated the removal
action after a customer filed a complaint regarding an incident with Complainant. Hr’g Tr., at
16-17. The customer claimed that Complainant approached her door after she left a note for
Complainant in her mailbox regarding not receiving her mail. The customer stated that
Complainant told her that two people at the Post Office were trying to take her job, that the
“devil is busy,” and gave her a slip of paper with the co-workers’ names on it. Id.
Additionally, the customer stated that Complainant was rude to her daughter. Id. The
Postmaster had previously instructed Complainant to not engage in controversial conversations
with customers regarding Agency policies. ROI, at 427. Thus, after conducting an
investigation and considering Complainant’s prior discipline, S1 issued Complainant the Notice
of Removal. Hr’g Tr., at 21, ROI, at 427.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). 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. The Commission finds that the substantial record evidence supports
that Complainant failed to establish pretext as to this claim. The record and facts gleaned at
the hearing fail to prove any evidence purporting to show the Agency’s actions were pretext
for discriminatory or retaliatory animus. As a result, the Commission finds that Complainant
was not discriminated or retaliated against as alleged.

0120121558

4
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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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 (Nov. 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”
0120121558

5
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

March 20, 2013
Date