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

Equal Employment Opportunity Commission

Jan 30, 2013

0120121435 (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. 0120121435

Agency No. 4G-770-0189-11

DECISION

On January 24, 2012, Complainant filed an appeal from the Agency’s January 9, 2012 final
decision concerning his 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. 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Jim Fonteno Post Office in Pasadena, Texas. On April 12, 2011, he withdrew his
name from the overtime desired list. The next day, an outside inspector was inspecting
Complainant deliver his route. The inspector called Complainant’s supervisor no less than
three times to say that Complainant was not delivering properly and was engaging in time
wasting tactics. Complainant also called in to say he could not complete delivery of his route
without overtime. In response, Complainant’s supervisor drove out to meet Complainant and
the inspector, denied the request for overtime, and ended the inspection. Approximately two
weeks later, Complainant was given another opportunity to complete his route inspection, and
he completed it within eight hours. About a month later, in June 2011, Complainant requested
a local reassignment to an Automotive Technician position in the Motor Vehicle craft. His
request was denied based on his safety and attendance records.

On July 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of sex (male) when he was denied overtime during a route inspection
and was denied reassignment into the Motor Vehicle craft. At the conclusion of the
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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. When
Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. This appeal followed.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with if the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). 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., 531) U.S. 133.143 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Upon review of the record, the evidence does not support a prima facie case of sex
discrimination. The two female carriers who were granted overtime during an inspection were
on the overtime desired list. Complainant was not on the list, and had he been directed to
work overtime, would likely have filed a grievance. With regard to the reassignment, the
female identified by Complainant did not apply for a position in the Motor Vehicle craft.

We further note that management articulated legitimate, non discriminatory reasons for its
actions. Complainant’s supervisor denied overtime during the route inspection because she had
the discretion to do so; Complainant was not on the overtime desired list; and the inspector’s
observations of Complainant during the route confirmed her belief that Complainant was
deliberately attempting to make his route seem undeliverable within eight hours to avoid an
accretion of duties.

The Manager at the Houston Vehicle Maintenance facility who denied Complainant’s
reassignment request did so because he found Complainant’s safety and attendance records
unsatisfactory. The collective bargaining agreement specifically states that safety and
attendance records must be considered when determining whether to grant local reassignments.
It is undisputed that Complainant’s records, while far from terrible, did involve three accidents
and at least six instances of unscheduled leave. The fact that Complainant had never been
disciplined does not refute the blemishes on his records.

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Complainant has presented no evidence from which a reasonable fact finder could conclude
that the Agency’s explanations were unworthy of belief or a pretext for sex discrimination.
For these reasons, his claim fails, and we AFFIRM the Agency’s final decision.

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.
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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