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

Equal Employment Opportunity Commission

Jun 6, 2013

0120121813 (E.E.O.C. Jun. 6, 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
(Southwest Area),
Agency.

Appeal No. 0120121813

Hearing No. 450-2011-00120X

Agency No. 4G-752-0355-10

DECISION

On February 11, 2012, Complainant filed an appeal from the Agency’s January 26, 2012 final
order concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of 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 City Carrier at the
Agency’s Post Office in Sherman, Texas. On August 6, 2010, Complainant received a Letter
of Warning for Failing to Follow Instructions, namely for working while “off the clock.”
Complainant explained that he went to retrieve his coffee cup and then tried to straighten up
his case because the next day was his off day and the case was a mess.

On September 11, 2010, Complainant filed an EEO complaint alleging that the Letter of
Warning was motivated by age discrimination and retaliation for his prior protected EEO
activity. 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 granted the
Agency’s motion for summary judgment and issued a decision on January 18, 2012.

0120121813

2
In her decision, the AJ found that Complainant admitted he had been warned not to work off
the clock and that on the day in question, he admitted that he did so. The AJ found that an oral
admonishment was the first level of discipline for this kind of infraction but that Complainant’s
refusal to heed these warnings led to the discipline at issue. The AJ found that many of the
employees at the Sherman Post Office were similarly reprimanded, including younger
employees with no protected activity. The AJ noted that the Letter of Warning was rescinded
via the grievance process. She concluded that Complainant failed to create any dispute about
the reasons for the discipline from which a reasonable fact finder might conclude it was a
pretext for unlawful discrimination. 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). 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.

Upon review of the record, we discern no basis to disturb the AJ’s grant of summary
judgment. Complainant argues on appeal that management was engaged in a concerted effort
to try to build a case against him to remove him from his job by searching for even his
slightest mistakes and then issuing discipline. Complainant believes that was done because he
was old and had used the EEO process to stand up against them. However, Complainant’s
belief is simply his belief. It is not evidence, and it is not sufficient to defeat summary
judgment. Complainant has not offered evidence from which a reasonable fact finder could
conclude that Complainant’s age or prior protected activity factored into management’s
actions. 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 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.

0120121813

3
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
0120121813

4
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

June 6, 2013
Date