Cary J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 12, 20192019000171 (E.E.O.C. Apr. 12, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cary J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019000171 Hearing No. 451-2015-00146X Agency No. 4G-780-0235-14 DECISION On August 16, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 2, 2018 final action concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Manager Customer Services at the Agency’s Leon Valley Station in San Antonio, Texas. On November 17, 2014, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against him based on race/national origin (Hispanic), sex (male), age (over 40) and in reprisal for prior EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019000171 2 1. on or around May 21, 2014, he was issued a Letter of Decision upholding a Proposed Letter of Warning in Lieu of Time-Off Suspension issued on April 18, 2014; 2. on or about July 21, 2014, he was issued a Letter of Decision upholding the Proposed Letter of Warning in Lieu of a Time-Off Suspension issued on July 3, 2014; and 3. on November 5, 2014, he was placed in an off-duty pay status. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On July 18, 2018, the AJ issued a decision by summary judgment in favor of the Agency, concluding no discrimination was established. The Agency issued its final action, adopting the AJ’s decision. The instant 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). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a 2019000171 3 factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The AJ found the following pertinent undisputed facts were established during the investigation of the complaint: Complainant is a Level 21 Manager Customer Services at the Leon Valley Station in San Antonio, Texas. The Customer Service Operations Manager was Complainant’s supervisor, and she reports to the San Antonio Postmaster. The Manager Customer Service of Air Mail Facility (AMF) Station was acting supervisor during the Customer Service Operations Manager’s absence. Regarding claim 1, Complainant asserted that on or around May 21, 2014, he was issued a Letter of Decision upholding a Proposed Letter of Warning in Lieu of Time-Off Suspension issued on April 18, 2014. The Manager Customer Service of AMF Station (White Hispanic Mexican American male, under 40, unknown prior protected activity) issued Complainant the Proposed Letter of Warning in lieu of a 14-day suspension on April 18, 2014, for “Unacceptable Performance and Failure to Properly Perform the Duties of Your Position.” The Manager stated that on March 27, 2014, he was informed by an auditor that there was delayed mail at the Leon Valley Station. The Manager stated that he called Complainant to validate the reporting of delayed mail. Complainant told him that there were approximately 100 pieces of first -class mail and asked the Manager what to do about the mail. The Manager stated that he instructed Complainant to take care of the delayed mail, update Customer Service Daily Reporting System (CSDRA) and connect the mail. The Manager stated that he later went to the Leon Valley Station to validate the first-class mail had been delivered. The Manager stated, however, he discovered “there were 118 periodical flats, 74 standard flats, and 412 standard letters delayed. [Complainant] updated CSDRS, but placed the mail in the wrong fields in CSDRS...I had to get [Supervisor] to properly update CSDRS and include all the delayed mail found. I also discovered that the Leon Valley Station was not in Load Level compliance, since eight (8) wire containers of parcels, two (2) pallets of parcels, and two (2) wire containers of carrier routed bypass had not been worked.” The Manager stated that he determined that Complainant was in violation of Sections 665.11 “Loyalty,” 665.13 “Discharge of Duties,” 665.15 “Obedience to Orders,” and 665.6 “Disciplinary Action” of the Employee and Labor Relations Manual (ELM). 2019000171 4 The Postmaster (Caucasian male, over 40, unknown prior protected activity) stated that on May 21, 2014, he issued the Letter of Decision letter. Specifically, the Postmaster stated that he believed Complainant was sincere in his explanations during the May 1, 2014 meeting and “for those reasons I have decided to reduce the Proposed Letter of Warning in Lieu of a Fourteen Day time off Suspension to a Proposed Letter of Warning in Lieu of a Seven Day time off Suspension to remain in your file for 12 months from date of issuance.” Regarding claim 2, Complainant alleged that on or about July 21, 2014, he was issued a Letter of Decision upholding the Proposed Letter of Warning in Lieu of a Time-Off Suspension issued on July 3, 2014. The Customer Services Operations Manager (Hispanic female, over 40, unknown prior protected activity), also Complainant’s supervisor, issued Complainant a Proposed Letter of Warning in lieu of 14 days on July 1, 2014, for unacceptable behavior. The Postmaster stated that on July 21, 2014, he issued the Letter of Decision upholding the Proposed Letter of Warning in Lieu of a Time-Off Suspension for unacceptable behavior. The Postmaster stated that Complainant failed to maintain proper procedures for the Street Supervision Initiative, failing to timely submit a modified duty job offer for an employee, failed to verify proper DOIS data and parcel counts, and failed to audit stamp stock. In the July 21, 2014 Letter of Decision, the Postmaster stated “based on my independent review of the file and all relevant documentation, I find that the employer was not arbitrary or capricious in proposing the letter of Warning in lieu of time off suspension. Therefore, I find that the Letter of Warning in Lieu of Fourteen Day Suspension is in the best interest and promotes the efficiency of the Postal Service. To do otherwise would undermine the confidence and morale of the employees who follow the guidelines without failure.” Complainant asserted that the Postmaster stated in the presence of other co-workers that he was going to fire Complainant concerning his performance. However, the Postmaster stated “what has been said to [Complainant] as well as to all of the station managers in the city is that continued failure in certain areas could lead up to discipline that could include termination.” Regarding claim 3, Complainant asserted that on November 5, 2014, he was placed in an off- duty pay status. The supervisor stated that on November 5, 2014, she placed Complainant on an off-duty pay status for failure to ensure the delivery of delayed mail during the operational widow on November 4, 2014. Specifically, the supervisor stated that on November 4, 2014, a rural carrier informed Complainant that he had an emergency and had to leave work immediately. Complainant instructed the rural carrier to leave the mail in the truck, leave the facility, and leave the keys with Complainant. 2019000171 5 The supervisor noted that the rural carrier returned the mail to the station in the morning, but Complainant did not handle it immediately. Instead, it was not realized until in the evening when the vehicle checks were being done. The supervisor stated that Complainant called her and informed her that he was on his way back to the unit. Complainant stated, “‘I hate to have to tell you this, but a carrier brought mail back today and ‘we’ forgot about it and [named supervisor] just found it.’” The supervisor stated that Complainant told her he would ask carriers to return to the station to deliver the mail. Further, the supervisor stated that she informed Complainant that she had called the Postmaster “to inform him of the situation so he could contact the District Manager because carriers would be sent back out in the dark and on that evening the streets were already flooded due to heavy rain in the San Antonio area. After I spoke with [Postmaster] and he spoke with DM and in the interest of the safety of our employees due to the storms, the carriers were not called in to go back out and deliver about 4 hours of mail that had been brought back. [Complainant] was made aware of the mail in the truck per his own instructions and failed to ensure the mail was delivered that day.” The record reflects that Complainant was paid for the days in which he was in off-duty status. Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination. We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 2019000171 6 A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2019000171 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 12, 2019 Date Copy with citationCopy as parenthetical citation