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

Equal Employment Opportunity Commission

Jun 27, 2013

0120113697 (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
(Capital Metro Area),
Agency.

Appeal No. 0120113697

Agency No. 4K-270-0004-11

DECISION

On July 20, 2011, Complainant filed an appeal from the Agency’s June 22, 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 (Title VII), as amended,
42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Supervisor,
Customer Services, EAS-17 at the Agency’s Research Triangle Park Station in Durham, North
Carolina. On January 6, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him in reprisal for prior protected EEO activity when he was issued a
Proposed Letter of Warning in Lieu of a time-Off Suspension for Failure to Follow
Instructions. The Agency accepted the complaint and conducted an investigation.1

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). When Complainant did not request a hearing within the time frame provided in 29
C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

1 The Agency declined to accept one issue, relating to an involuntary reassignment, which it
dismissed due to untimely EEO contact. The propriety of that dismissal is discussed below.
0120113697

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ANALYSIS AND FINDINGS

Procedural Dismissal – Involuntary Reassignment

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy,
EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until
a complainant reasonably suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend the time limits
when the individual shows that she was not notified of the time limits and was not otherwise
aware of them, that he did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence he was prevented
by circumstances beyond her control from contacting the Counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.

The record reflects that on July 24, 2010, Complainant was involuntarily transferred to the
East Durham Station. Complainant did not initiate contact with an EEO counselor concerning
this matter until October 8, 2010 and has not presented sufficient justification for his delay in
initiating the EEO process. Because the alleged incident did not occur within the 45 days
preceding Complainant's EEO counselor contact, dismissal of this claim was appropriate.
Complainant has not presented sufficient justification for his delay in initiating the EEO
process.

Disparate Treatment Discrimination – Letter of Warning

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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this where 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). 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., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981).

0120113697

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Here, the Agency explains that Complainant, as a supervisor of rural letter carriers, is required
to maintain daily “trip reports” reflecting the time carriers spend on their delivery routes. The
Agency’s Form 4250 is to be used to compile this information. According to the Agency,
Complainant failed to update the Forms 4250 as required. The letter of warning dated
November 1, 2010, and addressed to Complainant described the situation as follows:

. . . on October 13, 2010, a review was conducted by the IOP Coordinator, and
the review revealed that PS Forms 4240 had not been completed since October
8, 2010. You have been instructed that PS Forms 4240 are to be completed on
a daily basis, and you have been to rural time and attendance training. You
were also instructed on September 23, and 27, 2010, to address employee
attendance issues, which you failed to do.

This is a legitimate, nondiscriminatory reason for the issuance of the letter of warning.
Complainant has failed to establish that it is a pretext designed to conceal discriminatory
animus. Indeed, Complainant admits that he failed to complete the Forms 4240 in accordance
with the Agency’s instructions. Complainant seeks to deflect the Agency’s criticism by
claiming, for example, that he was not given sufficient time to complete the forms.
Complainant’s arguments are unpersuasive in light of the testimony supporting the Agency’s
position. Accordingly, we AFFIRM the Agency’s final decision.

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.
0120113697

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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

June 27, 2013
Date