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

Equal Employment Opportunity Commission

Jun 20, 2013

0120113484 (E.E.O.C. Jun. 20, 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. 0120113484

Hearing No. 460-2010-00106X

Agency No. 4G-770-0384-07

DECISION

On July 6, 2011, Complainant filed an appeal from the Agency’s June 2, 2011 final order
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 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 held a bid as a Carrier but
worked in a limited duty position at the Agency’s Oak Forest Station in Houston, Texas. In
April 2007, management presented some limited duty employees in the district with new
modified assignments at the General Processing Office (GPO) boxing mail. The record
suggests this may have been done in response to a grievance concerning crossing crafts.
Complainant was reassigned to the GPO for approximately eleven weeks. Her schedule at the
GPO was different from her Oak Forest Station schedule, and her commute was longer. On
July 30, 2007, she was offered a modified position (Lobby Director) back at the Oak Forest
Station. She accepted the offer under protest because the off days were non-consecutive.
Complainant initiated the EEO process because she wanted consecutive off days. She and the
Agency reached a settlement wherein Complainant was supposed to have a meeting on October
31, 2007, with her manager “to discuss preference of rotating non-scheduled day/crew.” If
unable to come to a “mutual decision,” Complainant was to remain with non-consecutive days
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off. Complainant alleged breach of this agreement, and on appeal, the Commission found the
agreement void due to lack of consideration and remanded the case for continued processing.
v. United States Postal Serv., EEOC Appeal No. 0120081298 (Sept. 22, 2009)

On December 15, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female) and disability
when for approximately eleven weeks in 2007, she was sent to the GPO and worked outside of
her schedule and when she returned to the Oak forest Station, she was denied consecutive off
days. 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). Complainant timely requested a hearing. When Complainant did
not object, the AJ granted the Agency’s motion for summary judgment and issued a decision
on May 24, 2011.

In her decision, the AJ concluded that the Agency produced legitimate, non-discriminatory
reasons for its actions. In April 2007, the Agency transferred limited duty employees to the
GPO to box mail. More likely than not, this was to ensure that they were not performing work
outside of their craft. With this transfer came a different schedule. In July 2007, Complainant
was returned to the Oak Forest Station where she was given a Lobby Director position with
Sunday and Thursday as off days. This schedule, like the one at the GPO, met the Agency’s
operational needs. The AJ concluded that Complainant was unable to prove that these actions
were motivated by discriminatory animus towards her race, sex or disability. Further, the AJ
found it undisputed that Complainant’s limited duty positions were within her medical
restrictions. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. This
appeal followed.

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). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. 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 decision. While we are
sympathetic to the frustration Complainant experienced as a result of having little control over
her schedule and assignments, the Agency cannot operate efficiently based on the preferences
of its employees. Rather, it must staff to meet the demands of its customers. There is no
evidence in this record from which a reasonable fact-finder could conclude that Complainant’s
race, sex, or disability, or for that matter, anything else particularly personal to Complainant,
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influenced the Agency’s actions. We find the AJ’s grant of summary judgment appropriate,
and we AFFIRM the Agency’s final order.

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.

0120113484

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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

June 20, 2013
Date