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

Equal Employment Opportunity Commission

Aug 7, 2013

0120122213 (E.E.O.C. Aug. 7, 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. 0120122213

Hearing Nos. 430-2011-00119X, 430-2010-00231X, 430-2010-00431X

Agency Nos. 4K-270-0136-10, 4K-270-0125-09, 4K-270-0026-09

DECISION

Complainant filed an appeal from the Agency’s final order dated March 29, 2012, finding no
discrimination with regard to his complaints. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

The record indicates that Complainant filed complaints, which were later consolidated, alleging
discrimination based on race (African American) and in reprisal for prior EEO activity when:

(1) On October 30, 2008, his rural route increased in size but he did not receive
appropriate increase in pay;1
(2) On August 20, 2009, management refused to turn in his edit book to Address
Management Services (AMS) in a timely manner, to keep his route from becoming
a K route and being credited with additional stops;

(3) On November 27, 2009, his request for annual leave was denied;
(4) On December 15, 2009, his request for 8 hours of leave on December 16, 2009,
was not returned;

1 The Agency previously dismissed this claim for failure to state a claim and/or as moot
pursuant to 29 C.F.R. § 1614.107(a)(1). Upon Complainant’s appeal, the Commission, under
EEOC Appeal No. 0120091738 (May 21, 2010), previously reversed and remanded the
complaint to the Agency for further processing. The Agency accordingly investigated the
complaint and it is now before us.
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(5) On December 17, 2009, his request for 24 hours of leave for December 24-28,
2009, was denied; and
(6) On August 16, 2010, he was denied the use of a postal vehicle (LLV) when his
personal vehicle broke down.2

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 26, 2012, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant
worked as rural carrier at the Agency’s Main Post Office in High Point, North Carolina. The
record indicates that Complainant subsequently retired from his employment at the Agency on
October 31, 2010.

2 In his complaint, Complainant also alleged that on December 8, 2009, his request to have his
workstation moved was denied. On January 6, 2010, the Agency dismissed this claim for
failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Since Complainant failed to
raise this dismissal issue with the AJ or on appeal, we will consider this claim as abandoned.
Accordingly, we will not discuss this claim further in this decision.
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With regard to claim (1), Complainant alleged that his route had not increased in pay as it
should have in accordance with the mail count. Complainant indicated that he previously filed
a grievance concerning the subject matter in October 30, 2008, which was subsequently settled
on December 16, 2008, with no increase in pay. Complainant’s manager (M1), then his
supervisor, indicated that Complainant’s rural route did receive credit as changes occurred and
all increases were awarded as those changes occurred. Also, stated M1, the route reflected
changes when the rural carrier reached 60 minutes or more. The record indicates that on April
26, 2008, Complainant’s pay was increased due to change in his route hours to 43 from his
prior hours of 41. Also, on August 30, 2008, Complainant’s pay was again increased due to
change in his route hours to 44. Upon review, we find that Complainant failed to show that he
was treated less favorably than a similarly situated employee under similar circumstances.

With regard to claim (2), M1 denied the alleged incidents. Specifically, Complainant’s
immediate supervisor (S1) at that time indicated that S1 passed on the edit books to M1 when
S1 received them from Complainant. M1 indicated that M1 asked employees, including
Complainant, to submit the edit books around the 15th of each month so M1 could send all of
the edit books, along with the PS form, to AMS at the same time to save on shipping. M1 also
stated that when an edit book was submitted, had no bearing on someone’s pay since if it was
determined that someone’s route needed to be adjusted or pay adjusted, then it was done
retroactively back to the previous pay period to cover the time period when it occurred.

With regard to claim (3), S1 stated that S1 denied Complainant’s leave request for November
27, 2009, since there was no sub assigned to his route as the sub transferred to another facility
earlier that year.

With regard to claim (4), M1 and S1 stated that they did not recall receiving a leave request
from Complainant on December 15, 2009. Furthermore, there is no indication that this leave
request was denied.

With regard to claim (5), S1 indicated that he denied Complainant’s leave request for
December 24-28, 2009, because there was no coverage for his route.

With regard to claim (6), S1 stated that it was the office policy not to allow rural carriers, as
Complainant, to use LLV to deliver mail. S1 indicated that rural carriers by contract were
paid an equipment maintenance allowance to compensate them for the use of their personal
vehicle. Despite Complainant’s arguments, stated S1, it was not S1 who allowed an employee,
identified by Complainant, to use a LLV on one occasion when that employee’s personal
vehicle broke down. S1 indicated that the identified employee, knowing that S1 would
disallow him a LLV, went to a new supervisor in the office, who was not familiar with the
office policy prohibiting the use of LLV by rural carriers, for a LLV. There is no evidence
that S1 permitted any rural carriers to use LLV.

Upon review, we find that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for the alleged actions. Furthermore, we find that Complainant
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failed to show that he was treated less favorably than a similarly situated employee under
similar circumstances. Based on the foregoing, we find that Complainant failed to show that
the Agency’s actions were motivated by discrimination as he alleged.

CONCLUSION

Accordingly, 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).
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”
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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

August 7, 2013
Date