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

Equal Employment Opportunity Commission

Mar 20, 2013

0120114293 (E.E.O.C. Mar. 20, 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. 0120114293

Hearing No. 550-2011-00277X

Agency No. 4F-940-0185-10

DECISION

On September 15, 2011, Complainant filed an appeal from the Agency’s September 8, 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). 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 Part-Time
Flexible City Carrier at the Agency’s Post Office in Corte Madera, California. On October
28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against
him on the bases of race (African-American), color (Black), and in reprisal for prior protected
when:

1. his request to use sick leave for August 19, 2010, was denied; and
2. during the week of October 18, 2010, he was only paid for a portion of his
approved annual leave.

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
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objections, the AJ assigned to the case granted the Agency’s June 28, 2011 motion for
summary judgment and issued a decision on August 31, 2011.

In his decision, the AJ found that the Agency proffered legitimate and nondiscriminatory
explanations for the claims at issue. Concerning the denial of sick leave, management
explained that Complainant was not scheduled to work on the day in question. Thus, there was
no basis to approve leave. Concerning the annual leave payment, management explained that
while Complainant was on approved annual leave, an unidentified employee accidentally
clocked in using Complainant’s timecard. When management went into the system to delete
the erroneous clock swipe, the action overrode Complainant’s approved annual leave and
caused him not to be paid correctly. The supervisor prepared a pay adjustment and on
December 10, 2010, Complainant received a money order for the amount he was owed. The
AJ found that Complainant offered no evidence from which a reasonable fact finder could
conclude that these were not the real reasons for the Agency’s actions. 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 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.

On appeal, Complainant argues that other carriers had their requests for sick leave approved,
but we cannot discern why Complainant needed sick leave for a day when he was not
scheduled to work. He also believes that he is poorly treated while Filipino and White
employees are not poorly treated, but his belief is not corroborated by persuasive evidence,
and is thus not sufficient to defeat summary judgment. Upon review of the record, we find no
evidence of discrimination, and we discern no basis to disturb the AJ’s decision. 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 tends to
establish that:
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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
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
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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 20, 2013
Date