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

Equal Employment Opportunity Commission

Sep 5, 2013

0120113717 (E.E.O.C. Sep. 5, 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. 0120113717

Agency No. 1B-072-0005-11

DECISION

On July 11, 2011, Complainant filed an appeal from the Agency’s final decision 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing & Distribution Center (P&DC) in Kearny, New Jersey. In
October 2010, he was placed in emergency placement without pay after co-workers reported
that he made serious verbal threats concerning the lives of two supervisors. His badge was
deactivated, and he was directed to stay away from the P&DC and report for an interview with
a Postal Inspector.

On December 17, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Hispanic) and in reprisal for prior
protected EEO activity with regard to the emergency placement. At the conclusion of the
investigation of the accepted issue, 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
0120113717

2
Judge (AJ).1

In accordance with Complainant’s request, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS

Complainant disputes that he ever made verbal threats against the supervisors. He claims that
the co-workers who informed management of the alleged threats were “liars” and that he was
never given the opportunity to confront them, i.e., denied due process. Complainant did not
request a hearing so we do not have the benefit of an AJ’s credibility determinations based on
observations of witness testimony. All we have in the record is Complainant’s denials and the
detailed statement of a co-worker describing very serious violent threats as well as accusations
that Complainant often used racial and sexist epithets. Given the nature of the statements as
well as the existence of the Agency’s zero tolerance policy for violence, we find that the
responsible management officials had a legitimate and nondiscriminatory reason for putting
Complainant in “emergency placement.” There is simply no evidence that his national origin
or prior protected activity motivated their action, and there is evidence that they did not do the
exact same thing to other employees, of different national origins and without protected
activity, for similar conduct. Even if it is true that Complainant did not make the threats, the
Agency’s response to the claim that he did, was not, under the circumstances herein, a
violation of Title VII. Accordingly, the Agency’s final decision 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

1 The Agency dismissed a second claim concerning Complainant having been denied due
process. We decline to disturb the dismissal given that the claim appears to be part of the
claim that was investigated.
(EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
0120113717

3
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
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

September 5, 2013
Date