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

Equal Employment Opportunity Commission

May 22, 2013

0120121980 (E.E.O.C. May. 22, 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
(Southeast Area),
Agency.

Appeal No. 0120121980

Hearing No. 490-2012-00031X

Agency No. 4H-370-0185-10

DECISION

On March 20, 2012, Complainant filed an appeal from the Agency’s March 8, 2011 final order
concerning her 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. 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). 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 Carrier
Technician at the Agency’s Post Office in Rossville, Georgia. A Carrier Technician is a
principal carrier for a designated group of not less than five letter routes and who delivers the
routes in his or her group, or “string," in the regular carrier's absence. On September 29,
2010, Complainant was scheduled and assigned to carry route C-21, and a substitute was
scheduled and assigned to carry route C-15.1

1 The substitute was scheduled because the Carrier Technician who would normally have
worked was on limited duty and was only available to case the route. She could not deliver it.
Complainant was more familiar with route C-21
than the substitute was, and route C-21 was longer than route C-15. Complainant asked to
carry route C-15 instead. Her request was denied because management wanted to ensure that
both routes were efficiently and correctly delivered on the day in question.

0120121980

2

On December 20, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), age (48), and
in reprisal for prior protected EEO activity when on September 29, 2010, her request to carry
Route C-15 was denied. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the report of investigation and notice of her 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 May 1, 2012.2

The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.
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.

As noted above, our review is de novo. We have examined the record carefully, including the
relevant rules set forth in the collective bargaining agreement and Complainant’s statement on
appeal. We find it undisputed that Carrier Technicians are permitted to carry alternate routes
but that management has the discretion to switch a Carrier Technician to another route on his
or her string or to deny a request to switch, based upon the needs of service. Here,
management exercised its right to deny Complainant a switch on a day when a substitute was
brought in. Management wanted the substitute to deliver the route he/she was most familiar
with. Complainant has submitted evidence that the substitute was a temporary employee who
had been assigned to Rossville for three years, but she does not dispute that the substitute was
more familiar with route C-15. Complainant’s requests to switch have been granted on
previous occasions when they do not conflict with the efficient delivery of the mail. We find
no evidence from which a reasonable fact finder could conclude from this record that unlawful
animus towards Complainant’s protected classes factored into management’s actions. The
Agency’s final order is AFFIRMED.

2 The AJ appears to have copied the Agency’s motion for summary judgment in its totality as
his decision, including sections from the motion that are entirely unrelated to the instant
complaint.
0120121980

3

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
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.

0120121980

4
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

May 22, 2013
Date