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

Equal Employment Opportunity Commission

Mar 26, 2013

0120114267 (E.E.O.C. Mar. 26, 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
(Headquarters),
Agency.

Appeal No. 0120114267

Hearing No. 440-2009-00230X

Agency No. 1Y-520-0020-09

DECISION

On September 13, 2011, Complainant filed an appeal from the Agency’s August 11, 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a).1

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 Supervisor,
Maintenance Operations at the Agency’s International Service Center in Chicago, Illinois. On
Friday, December 5, 2008, a custodian who worked for Complainant allegedly incurred a
wrist injury. Complainant informed his supervisor of the accident, and his supervisor
instructed Complainant to contact the Facility Safety Coordinator (FSC) to get instructions as
to the proper method for handling the accident. Complainant refused to do so, instead stating
that he knew what to do. Complainant brought the injured custodian for medical care at a
facility that was not authorized by the Agency for use. In addition, Complainant committed
other infractions, i.e., he did not email the FSC to notify him of the accident, he did not
contact the Safety Office by phone and he did not complete PS Form 1769 and submit it to the
Safety Office before the end of his tour. Consequently he was issued a proposed Letter of
Warning (LOW) In Lieu of Suspension, and in January 2009, the LOW was sustained.

1 We are not persuaded by the Agency’s argument that the appeal was filed one day late.
0120114267

2

On April 21, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and in reprisal for prior
protected EEO activity when he was disciplined for failing to follow instructions. 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. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s motion for summary judgment and issued a decision
on July 25, 2011.

In his decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons
for the discipline, namely that Complainant failed to follow instructions. The AJ found that
Complainant did not dispute that he had received an email in September 2008, specifically
stating that only one health care organization was authorized for use and that the email gave
specific instructions as to how to find information about its clinics and immediate care centers.
Complainant also did not dispute that he should have known how to follow accident procedures
and that he did not contact the FSC for help. Instead, Complainant argued that he did not have
to deal frequently with accidents and that everyone knows in an emergency, the nearest
medical clinic or hospital is supposed to be the best place to take a patient.2

The AJ concluded
that Complainant’s arguments fell far short of rebutting the Agency’s explanation for its action.
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. This appeal followed.
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). 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). 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, it is undisputed that Complainant was aware of his obligation to
follow safety procedures, that specific notice had been provided three months earlier
concerning which medical facility was authorized for Agency use, and that even if he was not
certain about what to do, despite having claimed “he knew what to do,” he could have
contacted the FSC for assistance but refused to do so. Complainant does not dispute that he

2 Given Complainant’s argument on appeal that the injury was a hoax, it is not clear what kind
of emergency occurred.
0120114267

3
failed to follow the rules. Instead, Complainant argues that his supervisor was issuing
discipline in order to retaliate against him. Complainant’s belief in this regard is not sufficient
to defeat summary judgment as it is not supported by any objective or corroborating evidence.
We discern no basis to disturb the AJ’s decision, and we AFFIRM the Agency’s final order.

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
0120114267

4
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

March 26, 2013
Date