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

Equal Employment Opportunity Commission

Mar 6, 2014

0120131333 (E.E.O.C. Mar. 6, 2014)

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. 0120131333

Hearing No. 532-2010-00047X

Agency No. 1C-441-0056-09

DECISION
On March 3, 2013, Complainant filed an appeal from the Agency’s 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. 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 worked as a Mail Processing
Clerk at the North Ohio Processing & Distribution Center in Cleveland, Ohio. On October 8,
2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the bases of race (African-American), sex (male), color (Black) and in reprisal for prior
protected activity when:

1. he learned that in August 2009 he would be involuntarily reassigned to the
Processing & Distribution Center in Lexington, Kentucky;
2. he was not granted retreat rights or relocation leave; and
3. he was the only employee not provided additional vacant positions to bid on.

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. After both parties
0120131333

2
submitted motions for a decision without a hearing, the AJ assigned to the case granted the
Agency’s motion on February 8, 2013.

In her decision, the AJ found that Complainant was one of 223 clerks involuntarily reassigned
due to the decline in mail volume and the closing of the airport mail facility. The clerks were
male and female of different races and colors. The excessing of these employees was executed
in accordance with the collective bargaining agreement and based on seniority. None of the
223 clerks involved in this excessing received retreat rights. Complainant was entitled to
relocation leave because he was assigned 50 miles beyond the Cleveland P&DC, but
Complainant never received the leave because he neither relocated nor did he ever report for
work in Lexington. The level 7 clerks who were subject to excessing were offered five
additional job preference listings because they were able to bid for level 6 or level 7 positions
while Complainant, who was a level 6 clerk, could not bid for level 7 positions. The AJ
concluded that none of the Agency’s actions were motivated by Complainant’s race, color, sex
or prior protected activity. 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 issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 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.
Upon review of the record, we discern no basis to disturb the AJ’s decision. There is no
evidence from which a reasonable fact finder could conclude that the Agency’s actions were
motivated by unlawful animus. There are no material facts in dispute. The Agency’s actions
were not in violation of Title VII. 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.

0120131333

3
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
0120131333

4
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

Date
March 6, 2014