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

Equal Employment Opportunity Commission

May 22, 2013

0120122026 (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. 0120122026

Hearing No. 510-2010-00424X

Agency No. 1H-331-0047-08

DECISION

Complainant filed an appeal with this Commission concerning his 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
Processing Clerk at the Agency’s Miami Processing and Distribution Center in Miami,
Florida. Complainant sought EEO counseling and subsequently filed a formal complaint.

Complainant alleges that he was subjected to discrimination on the bases of race (Caucasian),
color (white), and in reprisal for prior protected EEO activity when:

1. On February 27, 2008, Complainant was issued a Notice of Removal.
2. On April 23, 2008, management denied Complainant’s request to resolve the
disciplinary action and enter a last chance agreement.

At the conclusion of the investigation, Complainant received a copy of the investigative report.
Additionally, the Agency informed Complainant of his right to request a hearing before an AJ,
or alternatively, to receive a final decision from the Agency. Complainant requested a hearing
before an AJ.

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On February 14, 2012, an 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 the Agency presented legitimate,
nondiscriminatory reasons for its actions, which Complainant failed to rebut.

On February 29, 2012, the Agency, fully implementing the AJ’s decision, issued a decision
finding no discrimination. Complainant appealed from that decision.

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). 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 the issuance of summary judgment was appropriate as there are no
genuine issues of material fact. Regarding claim 1, the Supervisor of Tour 3 Automation
(Supervisor 1) stated that she was Complainant’s immediate supervisor during the time in
question but was on detail for the Southeast Area Office. Supervisor 1 confirmed that
Complainant was issued a Notice of Removal on February 27, 2008, for unsatisfactory
attendance. Supervisor 1 stated that the Supervisor of Distribution Operations (Supervisor 2)
made the determination to issue Complainant the discipline. Supervisor 1 noted that
Complainant had previously been counseled and disciplined regarding his irregular attendance
with a Letter of Warning on November 7, 2006, a Seven-Day suspension on June 11, 2007,
and a Fourteen-Day Suspension on November 16, 2007. Supervisor 1 averred that the
discipline policy at the Miami Processing Distribution Center was uniformly applied.

Supervisor 2 stated that he was Complainant’s immediate supervisor. Supervisor 2 confirmed
that Complainant was issued a Notice of Removal for unsatisfactory attendance. Supervisor 2
stated that he issued the discipline to Complainant and also made the determination that the
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discipline was warranted. Supervisor 2 stated that Complainant had previously been counseled
on this behavior.

The Manager of Customer Services (Manager) stated that she was the Manager of Distribution
Operations at the time in question. The Manager said that Supervisor 2 made the decision to
issue Complainant a Notice of Removal for unacceptable attendance. The Manager asserted
that the reason for the discipline was that Complainant’s attendance was unacceptable and said
that Complainant did not show improvement after the previous corrective attempts.

With respect to claim 2, Supervisor 1 stated that Complainant requested resolution of this
matter. Supervisor 1 explained that settlements were granted on a case-by-case basis.
Supervisor 2 stated that Complainant was not offered a last chance agreement. Supervisor 2
cited the reason for not offering Complainant resolution as the fact that Complainant had ample
opportunity to correct his deficiency in attendance. Supervisor 2 asserted that the Labor
Relations Specialist (LRS) made the determination that Complainant would not be offered
resolution. The LRS said that Complainant’s removal was to promote the efficiency of Postal
operations and the LRS said that he made the determination not to offer a Last Chance
Agreement.

After a careful review of the record and contentions on appeal, 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
or that the removal or refusal to enter a last chance agreement were motivated by
discrimination on the bases of race, color, or reprisal.

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
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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

May 22, 2013
Date