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

Equal Employment Opportunity Commission

Feb 21, 2013

0120111885 (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. 0120111885

Hearing No. 470-2010-00194X

Agency No. 1C-401-0007-10

DECISION

On February 14, 2011, Complainant filed an appeal from the Agency’s January 28, 2011,
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. 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 Agency’s notice of final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked 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, Complainant
worked on Tour 3 and his supervisor while on that tour was Person A, until she was detailed to
the carrier annex at another facility in August 2009. Person B was the Acting Plant Manager
at the Paducah Processing and Distribution Facility.

Complainant filed an EEO complaint dated January 16, 2010, which was amended, alleging
that the Agency discriminated against him on the bases of age (54) and in reprisal for prior
protected EEO activity when:

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1. Management allegedly failed to conduct a fair and unbiased investigation
concerning threatening behavior that was exhibited towards Complainant by a
co-worker on September 17, and 30, 2009;

2. On November 5, 2009, Complainant was reassigned from Tour Three to Tour
One;

3. Since November 13, 2009, Complainant has been receiving reduced work
hours;

4. From January 30, through February 5, 2010, Complainant was given two days
off while another employee was given only one day off, resulting in continued
loss of work hours; and

5. On March 10, 2010, and subsequent date(s), Complainant was not permitted to
take his lunch break as scheduled.

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). Complainant timely requested a hearing. The AJ held a hearing
on November 9, 2010, and issued a decision finding Complainant failed to prove he was
subjected to discrimination.

In his decision, the AJ noted that with regard to issue (1), Complainant’s complaint concerned
his interaction with Co-Worker 1, who was deaf. The AJ noted that on September 17, 2009,
Complainant was working with Co-Worker 1. The AJ noted that when Co-Worker 1 left the
work unit, Complainant used the Agency’s radio system and paged a supervisor and
complained that Co-Worker 1 was not working. The AJ noted that Co-Worker 1 did not hear
the page, but he was subsequently notified by others what happened. The AJ noted that Co-
Worker 1 became upset with Complainant and an argument ensued. The AJ noted that during
that period, Co-Worker 1 made some gestures that Complainant found offensive and that Co-
Worker 1 became loud while trying to communicate with Complainant. The AJ noted
Complainant complained to the Plant Manager (Person B) regarding Co-Worker 1’s behavior.

The AJ noted Person B had Person A investigate the matter. The AJ noted that during her
investigation, Person A interviewed the persons involved in the incident, the 204B Supervisor
on Tour 3, and Person C. The AJ noted Person A testified she did not interview some of the
employees because they did not come forward with important information concerning the
incident alleged or did not know what happened. The AJ noted that because Co-Worker 1 is
deaf, he does not communicate in the same fashion as individuals who are not deaf and that he
often gets frustrated when communicating with individuals who cannot sign. The AJ noted that
after conducting her investigation, Person A submitted a report to Person B who did not find
any fault by Co-Worker 1.

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The AJ noted that Complainant claimed Person A did not conduct a fair and unbiased
investigation because he previously filed an EEO complaint against her. The AJ noted that at
the time Person B asked Person A to conduct the investigation, she was on detail and not even
at the plant. The AJ noted that Person B testified he chose Person A to conduct the
investigation because he wanted an individual who knew the employees on Tour 3. The AJ
found Complainant produced no evidence showing that the investigation was affected by his
prior EEO activity.

With regard to issue (2), the AJ found that Complainant was reassigned from Tour 3 to Tour 1
because of the friction between Complainant and Co-Worker 1. The AJ noted that
Complainant was a PTF and had no contractual status while Co-Worker 1 was a regular
employee and that Person B chose to reassign Complainant, who had no set schedule. The AJ
noted that reassigning Co-Worker 1 might have been in violation of the union/management
contractual agreement. Additionally, the AJ noted that Person B testified that he moved
Complainant to Tour 1 because Tour1 processed much more mail than Tour 3. The AJ found
Complainant produced no evidence showing that the reason he was reassigned was because of
his age or prior EEO activity.

With regard to issue (3), the AJ noted that Complainant alleged that Person D who was the
Tour 1 supervisor, reduced his work hours while giving another PTF co-worker under the age
of 40 (Co-Worker 2) more hours. The AJ noted that the five weeks prior to coming to Tour 1,
Complainant averaged 45.5 hours a week and in the five weeks after coming to Tour 1 he
averaged 49.36 hours per week. The AJ also noted that in the five weeks prior to receiving his
EEO complaint Complainant averaged 50.6 hours a week. The AJ found as a PTF
Complainant did not have a set schedule or set number of hours and his hours varied week to
week depending on mail volume.

The AJ noted that Complainant claimed he was not allowed to work on Sundays as often as
Co-Worker 2. The AJ noted that Person D testified that while Complainant was allowed to
work Sundays, he was not allowed to work every Sunday. The AJ noted that there were no
regular employees assigned on Sundays to be a dispatcher and that Person D testified that he
had to fill that position on Sundays. The AJ noted that Complainant was not trained to work as
a dispatcher and that only two individuals were trained as dispatchers, Co-Worker 2 and Co-
Worker 3. The AJ noted that Person D testified that Co-Worker 2 was given more hours on
Sundays because he was a trained dispatcher. The AJ found Complainant failed to provide
evidence showing that his work hours were reduced because of his age or prior EEO activity.

With regard to issue (4), the AJ noted that Complainant alleged that from January 30, to
February 5, 2010, he was given two days off per week while another employee was given one
day off resulting in the loss of work hours. The AJ noted that Complainant stated that prior to
January 30, 2010, during the week 2-8, Complainant had one day off, week 9-15 he had two
days off, and during the week 16-22 he had two days off. The AJ noted that Complainant
stated that after February 5, 2010, during week 6-12 he had one day off, week 13-19 he had
one day off, and week 20-26 he had one day off.
0120111885

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The AJ noted that Complainant stated he brought the issue to Person D’s attention on
November 25, 2009, and he claimed that Person D told him “if you file an EEO complaint or
grievance against me I will cut your hours to 20 per week.” The AJ noted that Person D
denied making this comment to Complainant.

The AJ noted that Person D testified that Complainant’s hours varied from week to week
depending on whether regular employees were on vacation. The AJ noted that Person D stated
that if several employees are on vacation, then most, if not all PTFs would work those days.
The AJ noted that Person D explained that if he has plenty of regular employees for a
particular week then he tried to give as many of the PTFs as possible two off days. The AJ
noted that Person D explained that this helped to reduce overtime and he noted that almost all
the PTFs liked getting two days off a week. The AJ found that all employees, including
Complainant, have received two days off on some weeks and sometimes they have received
just one off day, depending on the mail volume on the floor. The AJ found Complainant
presented no evidence showing similarly situated employees who had been given one day off
consistently while he was given two days off here and one day off there.

With regard to issue (5), the AJ noted that Complainant alleged he was not allowed to take
lunch breaks as scheduled. The AJ noted that Complainant claimed that on March 10, 2010,
he asked Person D to take a lunch break and Person D refused. The AJ noted that Person D
refused because there was work to be completed. Specifically, the trucks needed to be loaded
before the trucks left. The AJ noted that Person D stated that most employees take their lunch
break around 6:00 a.m. which is after the last trucks are dispatched. The AJ noted that Person
D explained Complainant does not have a scheduled break and that it varies depending on the
mail volume and staffing. The AJ noted that Person D stated Complainant went to lunch at
6:07 a.m. on March 10 and 6:34 a.m. on March 17. The AJ noted that Person D testified that
several other employees went on break at similar times and that this was the earliest time they
could do so due to operational needs. The AJ noted that Complainant was the only employee
who ever requested to go to lunch at a certain time. The AJ noted Complainant did not
identify any other similarly situated employees that were allowed to go to lunch at a specific
time while he was denied. The AJ found Complainant failed to show that the Agency
subjected him to discrimination with regard to his lunch break based on age or in retaliation for
his protected EEO activity.

The Agency subsequently issued a notice of final action on January 28, 2011. 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.”
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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. Complainant failed to show that the Agency’s actions were a pretext for prohibited
discrimination or retaliation.

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:
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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
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
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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