01a11055
07-06-2001
Angel M. Lebron, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Angel M. Lebron, Jr. v. United States Postal Service
01A11055
7/6/01
.
Angel M. Lebron, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01A11055
Agency No. 1E-853-0020-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of
race (Hispanic), national origin (Puerto Rican), age (43) and reprisal
(prior EEO activity), when:
(1) on September 3, 1997, he was charged with Leave Without Pay,
on October 28, 1997, his supervisor called him into his office for a
quarterly review and would not allow him to use the restroom;
on October 29, 1997, his supervisor told him not to seek his own ride
to Urgent Care without his approval;
on January 13, 1998, while on light duty, he was instructed to take a
container to the dock that weighed approximately 500 pounds;
on January 29, 1998, he was issued a letter of warning for irregular
attendance when charged with unscheduled leave for absences on December
26, and 27, 1996, and January 2, 3, 7, 8, 9, 14, 15, 21, and 22, 1997,
and when the leave forms for those absences was falsified;
from April 25, 1997 through May 7, 1997 he was charged with unscheduled
absences; and
on July 25, 1997 he was not selected for a detail assignment.
The record reveals that during the relevant time, complainant was employed
as a Maintenance Support Clerk at the agency's Phoenix, Arizona, facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on June 25, 1998.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case because he failed to show that similar situated
individuals not in his protected classes were treated more favorably
under similar circumstances. As for his reprisal claim, the agency found
complainant failed to establish the requisite causal connection between
complainant's prior EEO activity and the actions at issue. Assuming
complainant established an inference of discrimination, the agency found
it articulated legitimate, non-discriminatory reasons for its actions.
On appeal, complainant contends that which he averred in his affidavit.
The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission agrees with the agency that complainant failed
to establish a prima facie case of discrimination because he failed to
establish an inference of discrimination. Specifically, we find that
complainant failed to establish he was subjected to an adverse action
regarding claims 2, 3, and 4.<1>
Assuming complainant established an inference of discrimination, we
find the agency articulated legitimate nondiscriminatory reasons for
its actions. As for claim 1, complainant states on appeal that although
he was initially charged with leave without pay on September 3, 1997, his
supervisor changed the entry to annual leave as per complainant's request.
Regarding the Letter of Warning, the record reveals complainant's
supervisor issued the Letter of Warning in response to complainant's
irregular attendance.<2> Although complainant alleged that his absences
were for scheduled doctor's appointments, the record does not support
his position.
As for complainant's claim that he was not selected for the detail,
complainant's supervisor averred complainant was not the most qualified
for the position. The supervisor further averred that the detail was not
filled because of his decision to fill the position on a permanent basis.
Furthermore, he averred that complainant did not apply for the position
on a permanent basis.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In that regard, complainant
failed to provide evidence that individuals outside of his protected
class with similar or worse attendance records were not issued a Letter of
Warning. Furthermore, complainant failed to establish that his absences
were not unscheduled, as he alleged in his affidavit. As for the detail,
complainant failed to persuade us that he was deliberately misled about
the availability of the detail for discriminatory reasons. Rather, the
preponderance of the evidence reveals that the position was not filled as
a detail because the agency determined it should be a permanent position.
Complainant was not selected for the position because he did not apply.
In sum, we find complainant failed to provide any evidence, other than
his own assertions, that he was subjected to retaliation or discrimination
because of a discriminatory motive.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
7/6/01
Date
1Complainant submitted no documentation that he was under any medical
restrictions at the time.
2The record reveals the Letter of Warning was eventually reduced to a
discussion pursuant to the grievance procedure.