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

Equal Employment Opportunity Commission

May 29, 2013

0120121995 (E.E.O.C. May. 29, 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. 0120121995

Hearing No. 451-2011-00217X

Agency No. 1G-781-0042-10

DECISION

Complainant filed an appeal from an Agency’s final order dated March 8, 2012, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In her complaint, dated December 13, 2010, Complainant alleged discrimination in reprisal for
prior EEO activity when she was denied employment on September 1, 2010, October 25,
2010, November 12, 2010, and November 30, 2010.1 The record indicates that at the
conclusion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On February 14, 2012, the AJ, after a hearing, issued a decision
finding no discrimination, which was implemented by the Agency in its final order.2

1 We note that Complainant’s sister, , filed her complaint, dated December
13, 2010, alleging the same claim (regarding ), which is pending before the
Commission under EEOC Appeal No. 0120121996.
2 The record indicates that the AJ consolidated the instant complaint and the sister’s complaint
for the hearing.
0120121995

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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The AJ stated that Complainant was previously employed by
the Agency as casual. In July 2003, Complainant was terminated for insubordination toward
her supervisor. The AJ stated that the record indicated that three managerial officials signed
the Separation Request for Complainant on July 23 and 24, 2003, stating the reason for the
separation was: “Insubordination toward [an identified supervisor]. Zero tolerance.” The
Separation Request indicated that Complainant was not eligible for rehire.3

The Agency stated
that Complainant was not rehired because she did not meet the eligibility and suitability
standards for the positions at issue as she was ineligible for rehire. The AJ indicated that
Complainant’s application for the positions at issue was processed in accordance with the
Agency practice.
The AJ determined and we agree that Complainant failed to show that she was treated less
favorably than a similarly situated employee under similar circumstances. The AJ stated that
Complainant failed to show by a preponderance of the evidence that the Agency’s proffered
reasons were pretextual. Upon review, we find that the AJ’s factual findings of no
discriminatory intent are supported by substantial evidence in the record.

3 The record indicates that Complainant previously filed a complaint, Agency No. 1G-781-
0069-03, concerning her July, 2003 termination and management’s subsequent action not to
rehire her. The Agency issued its final order concerning the subject complaint finding no
discrimination which was affirmed by the Commission in EEOC Appeal No. 0120055537
(February 16, 2007).
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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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
0120121995

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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

May 29, 2013
Date