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

Equal Employment Opportunity Commission

Aug 7, 2013

0120122296 (E.E.O.C. Aug. 7, 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. 0120122296

Hearing No. 443-2011-00160X

Agency No. 4E-500-0029-11

DECISION

Complainant filed an appeal from the Agency’s final order dated March 15, 2012, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, dated April 7, 2011, Complainant alleged discrimination based on age (over
40) when from February 3 – 15, 2011, he was degraded and verbally abused by the Officer-In-
Charge (OIC) and on February 17, 2011, the Agency denied his request for reassignment.
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On February 27, 2012, the AJ issued a decision without
holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s
decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing 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. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant 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 noted that Complainant applied for the position of
Postmaster Relief/Replacement (PMR) at the Tripoli Post Office, Tripoli, Iowa, and on
November 8, 2010, he was interviewed for the position. During the interview, the OIC
discovered that Complainant searched the internet and knew about her maiden name and her
personal information about where she had graduated high school. The OIC informed Human
Resources about Complainant’s internet search. On January 15, 2011, Complainant was hired
as PMR and began working at the Tripoli Post Office on February 3, 2011.

On February 3, 2011, the OIC, Complainant’s immediate supervisor, after discovering that
Complainant had also gathered information about other employees from the internet, told
Complainant that it was inappropriate to gather personal information about her and other
employees. Also, when the OIC learned that Complainant had previously told the OIC’s
supervisors what kind of training he should receive, the OIC told him that he should go
through her about that as she was his immediate supervisor. Complainant was also told not to
handle mail since it was his first day.

Complainant claimed that the OIC told him that he was not performing well and his request to
take the PMR training guide material home was denied. The OIC stated that during
Complainant’s job training, she had to instruct him regarding some position duties over and
over again. When she asked him to take notes of the instructions, he refused to so. The OIC
indicated that Complainant frequently interrupted her during the job training. The OIC
indicated that she denied his request to take the PMR training guide material home as it was
prohibited under the Agency’s policy.

Complainant last reported to work on February 15, 2011. On February 17, 2011,
Complainant submitted his letter and returned his badge and keys to the Agency. In that letter,
he requested “deferment of employment” and a reassignment to another facility.1

1 We note that Complainant does not claim a constructive discharge in the instant complaint.
The OIC
stated that Complainant never requested the reassignment previously to management and she
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expected him to report to work on February 17, 2011. Complainant’s manager denied
Complainant’s request for reassignment since he failed to follow the proper procedure for the
request and due to insufficient information to warrant a reassignment. There is no evidence
that Complainant provided the Agency any supporting information/statement other than the
foregoing letter.

The AJ found that based on the incidents described above, Complainant failed to establish the
incidents were sufficiently severe or pervasive. Upon review, we find that Complainant failed
to rebut the Agency’s legitimate, nondiscriminatory reasons for the alleged incidents, including
the denial of reassignment. Furthermore, we find that Complainant failed to show that he was
treated less favorably than a similarly situated employee under similar circumstances. Based
on the foregoing, we find that Complainant failed to show that the Agency’s action was
motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination 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.
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
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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

August 7, 2013
Date