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

Equal Employment Opportunity Commission

Jun 27, 2013

0120120984 (E.E.O.C. Jun. 27, 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
(Northeast Area),
Agency.

Appeal No. 0120120984

Hearing No. 520-2011-00214X

Agency No. 1C-141-0016-10

DECISION

Complainant filed an appeal with this Commission concerning her complaint of unlawful
employment discrimination. For the reasons set forth, we AFFIRM the Agency’s decision,
finding no discrimination.
BACKGROUND

The record reveals that, during the relevant time, Complainant was employed as a Mail
Handler at the Agency’s Buffalo Processing and Distribution Center in Buffalo, New York.
Complainant sought counseling and subsequently filed a formal complaint.

Complainant alleges that she was subjected to discrimination on the bases of race
(African-American), color (black), national origin (African-American), sex (female), age (over
40), disability, and in reprisal for prior protected EEO activity when on June 21, 2010,
Complainant was issued a Letter of Removal for Unacceptable Conduct, effective
July 24, 2010.1

1 Complainant’s complaint also included ten additional issues connected to a pending class
action complaint originating from the Agency’s National Reassessment Process (“NRP”) and
Office of Inspector General (“OIG”) investigations of disabled employees. ROI at 246-253.
See McConnell v. U.S. Postal Service, EEOC Appeal No. 0720080054 (January 14, 2010).
On November 18, 2010, the Agency issued a decision dismissing the ten additional issues.
There is no indication in the record that Complainant challenged the dismissal of the ten
additional issues with the Agency, the EEOC Administrative Judge, or raised the matter in the

0120120984

2

At the conclusion of the investigation, Complainant received a copy of the investigative report.
The Agency informed Complainant of her right to request a hearing before an EEOC
Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.

On October 31, 2011, an EEOC AJ issued a decision without a hearing finding that there was
no genuine issue of material fact in dispute, and concluded that Complainant had not been
discriminated against as alleged. Specifically, the AJ found that the Agency presented
legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.

On November 9, 2011, the Agency fully implemented the AJ’s decision, finding no
discrimination. Thereafter, Complainant filed the instant appeal.

On appeal, Complainant argued that the Agency’s/EEOC’s failure to inform her of a scheduled
hearing on July 18, 2011, that was postponed was deliberately kept from her so that the
Agency could order the AJ to dismiss the case for lack of evidence.

In response to Complainant’s Appeal, the Agency stated that there was no evidence in the
record that the Agency and/or the EEOC AJ conspired to keep the date of the hearing and its
postponement from Complainant. The Agency said that there was no evidence that
Complainant had been prejudiced by any procedural defect in Complainant’s stated failure to
receive the initial notice of hearing and postponement of the same. The Agency asserted that
there was evidence that Complainant responded to the Agency’s Motion for a Decision without
a hearing with her own written argument dated June 10, 2011. The Agency claimed that the
AJ received the argument and considered it in his decision dated October 28, 2011. The
Agency articulated that the Agency did not preclude Complainant from submitting evidence
into the record for her case. The Agency stated that Complainant failed to establish any basis
of reversing the decision in this matter.

ANALYSIS AND FINDINGS

We must first determine whether it was appropriate for the AJ to have issued a decision
without a hearing on this record. We find no persuasive evidence that the AJ failed to inform
Complainant of any scheduled hearing (which Complainant is not even claiming was held) or
that the AJ somehow manipulated any hearing scheduling so that the instant case could be
issued as a decision without a hearing.

instant appeal. The Commission has the discretion to review only those issues specifically
raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, 9-10 (November 9, 1999). Avelino Abeijon v. Department of Homeland Security
(August 8, 2012). Accordingly, we will not address the dismissed claims in this decision.
0120120984

3
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. 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). 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. 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. Id. at 255. 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. If a case can only
be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider summary judgment only
upon a determination that the record has been adequately developed for summary disposition.
Upon review, we find summary judgment was appropriate as no genuine issues of material fact
exist.
In analyzing a disparate treatment claim, where the Agency denies that its decisions were
motivated by discrimination and there is no direct evidence of discrimination, we apply the
burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C.Cir. 1999). If Complainant establishes a prima facie case, then the burden of production
shifts to the Agency to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. If the Agency is successful, the burden reverts back to Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were a pretext for
discrimination. At all times, Complainant retains the burden of persuasion, and it is her
obligation to show by a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens

, 460 U.S. 711, 715-716 (1983).
Assuming arguendo that Complainant is an individual with a disability under the Rehabilitation
Act, and that she otherwise established a prima facie of case on all alleged bases of
discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Complainant has not met her burden of showing, by a preponderance of the
evidence, that the Agency's reasons are pretext for discriminatory animus.

The Supervisor stated that he issued the Notice of Removal to Complainant for Unacceptable
Conduct effective July 24, 2010, because of the report, the video, and the pictures he received
from the Office of Inspector General (OIG). The OIG report found that Complainant falsified
0120120984

4
earnings from her online company and misrepresented her physical abilities while claiming an
on-the-job injury.

The Commission finds that Complainant failed to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown that similarly situated
persons were treated differently than Complainant. Furthermore, Complainant failed to show
that the Agency’s action was motivated by discrimination. Furthermore, we find that even if
we assume Complainant was an individual with a disability (a matter we do not decide in this
decision), Complainant has failed to show she claimed or was denied a reasonable
accommodation.

CONCLUSION

The Agency’s decision finding no discrimination 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).
0120120984

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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
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 27, 2013
Date