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

Equal Employment Opportunity Commission

Sep 19, 2013

0120113743 (E.E.O.C. Sep. 19, 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
(Western Area),
Agency.

Appeal No. 0120113743

Agency No. 1E-971-0012-11

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 5, 2011 final Agency decision (FAD) 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Processing and Distribution Center in Portland, Oregon. Complainant
placed his name on a list of employees seeking a voluntary transfer to the Maintenance Craft.
Management was preparing to excess positions and attempted to negotiate with the union to
allow employees who had requested a change in craft to be granted the request prior to the
excess process. On November 10, 2010, the Human Resources Specialist (HRS) left
Complainant a voicemail notifying him that his request had been granted. The next day, the
Operations Support Specialist (OSS) informed HRS that the union would not allow
Complainant to change crafts, and Article 12 of the collective bargaining agreement (CBA)
would be followed strictly during the excessing process. Shortly thereafter, Complainant was
informed that he would not be allowed to voluntarily transfer to the Maintenance Craft.

On January 24, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), color (Black),
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disability, and in reprisal for prior protected EEO activity when on November 20, 2010, he
was denied a position previously awarded to him and denied training for that position.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a
FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and determined that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, OSS affirmed that she was involved in
meetings with the union regarding voluntary movement between crafts. She explained that
management had hoped that the union would allow voluntary movement of employees before
invoking the Article 12 CBA language on holding vacancies for impacted employees, however,
they ultimately did not. The Plant Manger (M1) confirmed that the CBA had to be followed,
and under the contract, movement was only allowed within an employee’s craft first. As a
result, Complainant was not allowed to voluntarily transfer or begin training for the Custodian
position in the Maintenance Craft.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
discriminated or retaliated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Plant Manager abused her authority and committed
numerous discriminatory acts. Complainant further alleges that transferring to the
Maintenance Craft would have increased his salary and given him access to other positions, but
the Plant Manager blocked this opportunity. Complainant contends that the Portland District
has a long history of discrimination against African-American employees. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially establish a prima facie case by demonstrating

1 The Agency dismissed an additional claim regarding leave under the Family Medical Leave
Act pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant raised no
challenges to this dismissal on appeal; therefore, the Commission will not address the
dismissed claim in this decision.
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that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, M1 affirmed that she began the process of excessing
employees in accordance with the CBA, and excessed employees would have had the
opportunity to choose among vacant, withheld positions. ROI, at 197. The CBA required
management to excess employees inside their craft first before excessing outside their craft.
Id. Complainant had placed his name on a list of employees who wished to transfer to the
Maintenance Craft. HRS initially contacted Complainant to inform him that his request to
transfer had been granted; however, the offer was quickly rescinded soon after the union
objected. OSS stated that management had hoped the union would allow voluntary movement;
however, it ultimately decided that the CBA should be strictly followed. Id. at 103. As a
result, Complainant was not allowed to voluntarily transfer to the Maintenance Craft or attend
the associated training for that position. Instead he would have to choose a withheld position
during the excessing process based on his seniority. Id. at 115.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

The Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory or
retaliatory animus. Complainant failed to carry this burden. As Complainant chose not to
request a hearing, the Commission does not have the benefit of an AJ's credibility
determinations after a hearing; therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. As a result, the Commission finds that Complainant has
not established that he was subjected to unlawful discrimination or reprisal.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
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the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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

September 19, 2013
Date