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

Equal Employment Opportunity Commission

Sep 19, 2013

0120120345 (E.E.O.C. Sep. 19, 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
(Pacific Area),
Agency.

Appeal No. 0120120345

Hearing No. 550-2011-00316X

Agency No. 4E-890-0071-10

DECISION

On October 22, 2011, Complainant filed an appeal from the Agency’s September 9, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 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 Letter Carrier at
an Agency Post Office in Carson City, Nevada. On September 24, 2010, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the bases of race
(African-American), disability, age (56), and in reprisal for prior protected EEO activity when:

1. on January 19, 2010, management checked his case area three times;
2. on January 26, 2010, he was criticized for organizing advertisements in a particular
way;
3. on February 11, 2010, he was criticized for the manner in which he organized the mail;

1 Complainant claims to have received the final order on September 21, 2011, and the Agency
does not argue that the appeal is untimely.
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4. on February 16, 2010, he was criticized in an abrupt, angry, and disrespectful manner
for missing a scan point;
5. on April 19, 2010, he was sent home and denied a reasonable accommodation;
6. he has never received praise from the Postmaster;
7. on May 28, 2010, he was given additional mail addresses for delivery;
8. on June 3, 2010, he was issued a Letter of Warning for unauthorized extension of his
lunch break;
9. on August 20, 2010, he made a second request for his workload;
10. on August 27, 2010, he was issued a 14-day suspension for an unauthorized extension
of his lunch break; and
11. on September 23, 2010, he was required to complete his route in 8 hours, causing him
to suffer an asthma attack.

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 assigned to the
case granted the Agency’s motion for summary judgment and issued a decision on August 30,
2011.2

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 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). 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.

On appeal, Complainant explains that he is only challenging claim (8), the Letter of Warning,
and claim (10), the 14-day suspension. Both concern discipline for extending his lunch break.
We consider the other claims abandoned.

Complainant makes two primary arguments. The first is that it was an unspoken policy to
extend one’s lunch break and then request leave to cover for the extension. The second is that
he was given much more severe punishment than others for extending his lunch break. We
find his arguments misplaced. First, there is evidence that on multiple occasions, Complainant
filled out leave forms in advance of extending his lunch break which undermines his claim
about the existence of an unspoken policy. There is no evidence in the record from a

2 Complainant did not submit his statement opposing summary judgment to the AJ until after
the AJ issued his decision. Because he includes the same material in support of the appeal, we
will address his arguments herein.
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reasonable fact finder could conclude that the Agency policy did not require advance notice of
leave, absent exigent circumstances, and there is no evidence herein of exigent circumstances.

Further, in 2008, several of Complainant’s coworkers were issued Notices of Removal for
extending their lunch breaks which undermines his claim that he was punished more severely.
The named comparators were in fact treated much more harshly as they were issued removal
notices while Complainant received a Letter of Warning and then after he committed the very
same offense, a 14-day suspension. We note that through the grievance process, the removals
of the named comparators were rescinded and reduced to different forms of discipline,
depending on the employee’s history of prior discipline, just as Complainant’s 14-day
suspension was later reduced to a 7-day suspension.

We find that Complainant failed to adduce evidence sufficient to support an inference of
discrimination or retaliation. Complainant does not dispute that he extended his lunch break
without authorization, and there is no evidence that others who did so were treated more
favorably by management. 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
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4
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 19, 2013
Date