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

Equal Employment Opportunity Commission

Jan 30, 2013

0120112592 (E.E.O.C. Jan. 30, 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. 0120112592

Agency No. 4G-870-0047-10

DECISION

On April 13, 2011, Complainant filed an appeal from the Agency’s March 16, 2011, final
decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail
Technician at the Agency’s Albuquerque Post Office in Albuquerque, New Mexico.
Complainant’s first-level supervisor was S1, Supervisor Bulk Mail Entry (BME).
Complainant’s second-level supervisor was S2, Manager, BME.

Complainant filed an EEO complaint dated July 21, 2010, alleging that the Agency
discriminated against her on the bases of sex (female) and age (54) when:

1. By letter dated April 8, 2010, Complainant was placed on Emergency Placement in
a Non-Duty Status;
2. On May 6, 2010, Complainant was issued a 14-Day Suspension for Unacceptable
Conduct; and
3. On April 16, 2010, when Complainant reported back to work her computer access
had been taken away and she was subsequently required to request it be reactivated.

0120112592

2
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). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

In its final decision, the Agency determined Complainant did not establish a prima facie case of
discrimination. Specifically, the Agency found Complainant did not identify any similarly
situated individual who was not a member of her protected groups and who was treated more
favorably than she was. Additionally, the Agency found Complainant failed to present any
evidence that affords a sufficient basis from which to draw an inference of discrimination. The
Agency also noted it articulated legitimate, non-discriminatory reasons for its actions which
Complainant failed to show were a pretext for discrimination. The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant notes the Agency spent a considerable amount of time discussing how
Complainant failed to show that a similarly situated employee was treated differently.
Complainant argues that it is not necessary for her to show a similarly situated employee to
raise an inference of discrimination. Complainant states she has raised an inference of
discrimination by stating that when male employees or male contractors engage in the type of
behavior she is accused of, they are treated better. Specifically, Complainant states she was
treated differently than Person X and S1. With regard to the Agency’s contention that Person
X was a customer, Complainant claims that Person X was much more than a customer and
states he was in the office several times a day. Complainant claims the Agency’s attempts to
distinguish her from Person X and S1 shows pretext. Additionally, Complainant claims the
alleged corroborating statement in the record from Employee A was coerced by S2 and S3.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
0120112592

3
articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

The Agency stated on April 8, 2010, Complainant was placed on Emergency Placement in an
Off-Duty Status, to investigate a “possible threat” she made. In his affidavit, S1 stated that on
April 8, 2010, he was informed by employees that Complainant made threats against him and
S2 on April 7, 2010. In his affidavit, S1 stated that he immediately reported the incident to S2
who then notified the Postal Inspection Service and the District Threat Assessment Team. As a
result, the Agency placed Complainant on an Emergency Placement in an Off-Duty Status due
to a “possible threat.” The record reveals the Postal Inspection Service completed their
investigation on April 14, 2010. The Agency concluded the investigation by the Postal
Inspection Service indicated that Complainant had made an inappropriate statement regarding
keying the cars of S1 and S2 and a statement indicating that she might stab them with a letter
opener. The Agency explained that following a full assessment of the available evidence the
decision was made to issue Complainant a 14-Day Suspension. Despite Complainant’s
contention, she produced no evidence that the statement by Employee A obtained during the
investigation of the incident was coerced by management.

The Agency noted that there were no other employees who made threats in a manner similar to
Complainant’s conduct on April 7, 2010, and that there were no employees who had been
placed in Emergency Placement. The record reveals that S1 disciplined two other employees
in the BME; however, neither situation was for conduct similar to that of Complainant.
Specifically, in one situation an employee was given a Letter of Warning for failure to provide
documentation within a reasonable requested time period and falsification of medical
documentation. In the other situation, an employee received a Letter of Warning for failure to
be in regular attendance.

In an attempt to show pretext, Complainant claimed that Person X, who she described as an
employee of a mailing company named Express Mail, made a threat against a previous
manager. The Agency noted that Person X was the employee of a customer company that sent
mail almost daily at the BME. The Agency noted that Person X made an alleged threat while
on Agency premises and that the threat was reported by management to the Postal Inspection
Service. The Agency noted that Postal Inspectors investigated the incident and spoke to Person
X regarding the seriousness of the matter and warned him that such statements could result in
his arrest. We find that the situation with Person X is distinguishable since he was not an
Agency employee working in the BME.

0120112592

4
Complainant also claimed that on August 18, 2010, S1 made a “gesture with his hands as if he
were strangling someone” during a conversation with a customer. Complainant stated that
when a customer asked S1 to call his boss to explain information pertaining to a mailing, S1
responded with the hand gesture. Complainant stated that she reported this incident to the
Postal Inspection Service; however, no action was taken. We find the situation involving S1
distinguishable since he was not alleged to have made a specific threat against anyone.

With regard to issue (3), the Agency stated that when she was placed on Emergency Off-Duty
Status, her computer access was taken away since she was charged with unacceptable conduct.
Complainant claimed that on April 16, 2010, when she reported back to work her computer
access had been taken away and she was subsequently required to request it be reactivated. S1
stated that upon her return to duty her access was restored but that it might have taken a day or
two for this to occur.

In the present case, we find the Agency articulated legitimate, non-discriminatory reasons for
its actions. Complainant failed to show by a preponderance of evidence that the Agency’s
actions were a pretext for prohibited discrimination.

CONCLUSION

Accordingly, the Agency’s final decision 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
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.
0120112592

5

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
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

January 30, 2013
Date