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

Equal Employment Opportunity Commission

Feb 21, 2013

0120122246 (E.E.O.C. Feb. 21, 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
(Eastern Area),
Agency.

Appeal No. 0120122246

Hearing No. 470-2011-00107X

Agency No. 1C-401-0056-07

DECISION

On April 20, 2012, Complainant filed an appeal from the Agency’s April 6, 2012, notice of
final action 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. For the following reasons, the Commission AFFIRMS
the Agency’s notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a as a Part-Time
Flexible (PTF) Processing Clerk at the Agency’s Paducah Processing and Distribution Facility
in Paducah, Kentucky. As a PTF, Complainant is not guaranteed a minimum or maximum
number of hours in any given week. The only guarantee Complainant received is that when
assigned to work, he will work at least two hours. During the relevant time, Person A served
as Complainant’s supervisor. The record reveals that Person A served as a relief supervisor
(204b) in 2007, and was an acting supervisor for most of 2008. Person A became an EAS
Supervisor, Customer Services in late 2008.

Complainant filed an EEO complaint dated December 5, 2008, alleging that the Agency
discriminated against him on the basis of sex (male) when:

1. On September 1, 2007, May 31, 2008, and June 7, 2008, Complainant was
assigned work outside of his job bid;

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2. On November 29, 2008, the Agency denied Complainant sick leave; and

3. On December 1, 2008, Complainant’s break was delayed.

On December 22, 2008, the Agency dismissed the complaint in its entirety. Complainant
appealed the dismissal to the EEOC’s Office of Federal Operations. In EEOC Appeal No.
0120091902 (October 29, 2010), the Commission found the dismissal of issues (1) and (2)
were improper and remanded those issues for further processing. The Commission upheld the
dismissal of issue (3).

At the conclusion of the investigation on issues (1) and (2), 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 and the AJ held a
hearing on March 6, 2012, and issued a decision finding no discrimination on March 19, 2012.

In his decision, the AJ noted that Complainant attempted to amend his complaint by adding
certain allegations from 2010. The AJ noted the Agency rejected the amendment because
Complainant had already raised the maters in another complaint. The AJ noted that
Complainant did not file a motion or otherwise seek review of the claims dismissed by the
Agency. Thus, the AJ stated his decision would only address issues (1) and (2) accepted by
the Agency.

The AJ noted that in the fall of 2007, Complainant was part of a disagreement with
management regarding the rotation of employees through various positions at the facility. The
AJ recognized that in an October 30, 2007 settlement agreement, the Agency and Complainant
agreed that there would be rotations for all career hires and casual employees, excluding
Christmas casuals.

The AJ noted the rotations made pursuant to the settlement agreement occurred on Saturdays.
The AJ noted that during Monday through Friday, full-time regular employees work on the
dock; therefore, rotation was not required. The AJ found that at the time of the agreement,
there were four PTF Mail Processing Clerks, including Person A, Complainant, and Person B
(female) who were subject to the rotation. However, the AJ noted that Person A did not
participate in the rotation on the days that she served as a supervisor.

The AJ noted that Complainant alleged that he was given an assignment outside his usual job
on September 1, 2007, prior to the Settlement Agreement regarding the rotation of jobs. The
AJ noted that Person A stated she did not rotate the PTF assignments that day because
Complainant was not sufficiently trained to work the Flat Sorter. The AJ found Complainant
failed to come forward with evidence that the reason articulated by the Agency was a pretext
for discrimination.

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The AJ noted that after the agreement was implemented, the rotating of jobs was not a problem
again until May 31, 2008. The AJ noted that on that date, Complainant was assigned to work
the dock, in accordance with the rotation. The AJ noted that the next Saturday, June 7, 2008,
Complainant should have been rotated to another position; however, he was again assigned to
work the dock. The AJ noted that on June 7, 2008, Person B was supposed to be assigned to
the dock under the rotation; however, Person A assigned Person B to work inside.

The AJ noted that Person A stated that she made the decision to assign Complainant and
Person B as she did based on the availability of employees that day. The AJ noted that Person
A stated that when she arrived at work on June 7, 2008, she learned that one employee had
called in sick, another employee was on annual leave, and a third employee had a bid job
assignment in the registry cage. The AJ noted that there were only three PTFs who were
trained for the expeditor position. The AJ noted that this included one of the employees who
was not at work, Person B, and Person A. The AJ noted that Person A was working as the
supervisor, so Person B was assigned to perform the expediting work. The AJ noted this left
the dock work to Complainant, who was not trained on the expediting position. The AJ found
Complainant failed to establish that the Agency’s actions were a pretext for discrimination.

With regard to issue (2), the AJ noted that Complainant submitted a request for eight hours of
sick leave on November 29, 2008. The AJ noted that Person A told Complainant that
documentation was required from Complainant upon his return to work. The AJ noted that on
December 5, 2008, Person A disapproved Complainant's leave for “failure to provide
acceptable documentation.” The AJ noted that Complainant presented a doctor's note, dated
November 29, 2008, stating he was seen on November 29, 2008, by Dallas Medical PLLC.
The AJ noted that the doctor’s note stated: “Please excuse this employee's absence today due
to our office visit. The above [patient] may return to work on 11/30.” Although given another
chance to provide more detailed documentation to show he was unable to work on November
29, 2008, Complainant failed to provide such documentation.

The AJ noted that under the Agency's policies, Person A was entitled to ask for medical
documentation for Complainant’s absence, although she was not required to do so. The AJ
noted that during the investigation, Complainant contended that Person B has also been
requested to submit medical documentation for an absence. The AJ noted that Complainant
claimed that Person B submitted a document from Dallas Medical, and that it was accepted by
management. The AJ found if Complainant’s unsupported and uncontested contention is
accepted as true, then a similarly situated female employee was treated the same as he was
treated in terms of being required to submit medical documentation.

However, the AJ found that even if Person B was required to submit the documentation, there
was no evidence of the documentation itself. Therefore, the AJ stated he could not conclude
that the documentation, although from the same health care provider, was the same as the
documentation presented by Complainant. The AJ found that Complainant failed to present
evidence that he and Person B were similarly situated for the purposes of the medical
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documentation. The AJ concluded that Complainant failed to establish that Person A’s reason
for rejecting the medical documentation was a pretext for discrimination.

The Agency subsequently issued a notice of final action on April 6, 2012. The Agency’s
notice of final action fully implemented the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

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). 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 Construction Co. 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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 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., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the
Navy, EEOC Request No. 05950351 (December 14, 1995).

After a careful review of the record, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. Moreover,
we find the record was fully developed in this case. In the present case, the record supports
the AJ’s finding that the Agency presented legitimate, non-discriminatory reasons for its
actions. We note that in claim 1, Complainant was in a position, PTF, where he was assigned
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where he was needed. Regarding claim 2, Complainant failed to show that his documentation
was sufficient or that similar documentation had been accepted for other employees outside of
his protected class of sex. Complainant failed to show that the Agency’s actions were a pretext
for prohibited discrimination.

CONCLUSION

Accordingly, the Agency’s notice of final action 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.
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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

February 21, 2013
Date