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

Equal Employment Opportunity Commission

Jun 14, 2013

0120113836 (E.E.O.C. Jun. 14, 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. 0120113836

Hearing No. 570-2010-00833X

Agency No. 4K-200-0002-10

DECISION

On August 12, 2011, Complainant filed an appeal from the Agency’s August 5, 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 (Title VII), as amended,
42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant had been employed with the
Agency for 23 years and worked as a Letter Carrier at the Agency’s Curseen Morris Post
Office in Washington, DC, also known locally as the Brentwood facility. On August 26,
2009, Complainant was involved in an accident involving a postal vehicle. When the police
arrived, it was discovered that Complainant’s driver’s license had been suspended since
October 2008. On September 30, 2009, Complainant was notified that he would be removed
from employment, effective November 3, 2009, for improper conduct/failure to maintain
driver's license and to give immediate notice of suspension of license. Complainant filed a
grievance, but his removal was upheld by an arbitrator on April 1, 2010.

On December 30, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), color (Brown), disability
and in reprisal for prior protected EEO when he was terminated. At the conclusion of the
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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. Over Complainant’s objections, the AJ granted
summary judgment in the Agency’s favor, and 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.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. 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.

Upon review of the record, we find that summary judgment was appropriate because there are
no material facts in dispute. Complainant admits that his license was suspended. Although he
claims to have not known it was suspended, there is no dispute that the Department of Motor
Vehicles notified Complainant at his address of record about the suspension. The record also
supports the finding that Complainant’s license had been suspended no less than eight times
during the course of his postal career. It is also undisputed that driving was a daily function of
Complainant’s job; he was required to have a valid driver’s license and he was required to
notify his managers immediately if his license was suspended – which he did not do. It is also
undisputed that removal for this kind of conduct violation was well within the parameters set
forth in the Employee & Labor Relations Manual.

Complainant identified a comparator, who had an accident while driving with a suspended
license and was not punished as harshly. The comparator’s driving privileges were suspended;
however, management determined that he had a legitimate reason for not knowing that his
license had been suspended, while Complainant did not, and, unlike Complainant, he did not
have a history of seven additional suspended licenses during the course of his postal career.
Therefore, the Agency’s final order is AFFIRMED.

0120113836

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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”
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
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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 14, 2013
Date