0120162286
10-24-2016
Claud R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Claud R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120162286
Hearing No. 480-2012-00648X
Agency No. 4F-913-0096-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 9, 2016 final action 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 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 City Letter Carrier at the Agency's Northridge, California Post Office.
On January 7, 2012, Complainant filed the instant formal complaint. Complainant alleged that the Agency discriminated against him on the bases of race (Caucasian), age (over 40), and in reprisal for prior EEO activity when:
1. on four occasions in August 2011, September 2011, and October 2011, management watched him on his route but failed to give him a Street Observation PS Form 3849;
2. on September 8, 2011, Supervisor of Customer Services issued him a Notice of 7-Day No Time Off Suspension for Failure to Follow Instructions/Poor Job Performance and stated to Complainant "I told you I would get you;"
3. on or about October 4, 2011, management adjusted his mounted route to a walking route causing an increase in overtime from 2.5 hours of overtime to over 5 hours of overtime;
4. on October 15, 2011, Supervisor of Customer Services issued him a Notice of 14-Day No Time Off Suspension for Failure to Follow instructions; and
5. on December 12, 2011, Supervisor of Customer Services issued him a Letter of Warning.2
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 April 15, 2016, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Regarding claim 1, the Agency's Handbook PO-701 Fleet Management addressed Agency management's responsibility for fleet management and prescribed procedures to attain maximum efficiency. Specifically, Section 244.31 of the handbook states that managers would conduct street observations at least twice per year of all carriers. The purpose of the observation was to provide awareness and to improve driving practices, thus reducing the potential for accidents. Section 244.233 of the handbook states that observations would be documented using Form 4584 "Observation of Driving Practices," and a copy of the form would be provided to the driver.
On August 17, 2011, the Acting Postmaster, also Complainant's supervisor, and an unidentified supervisor followed Complainant while he was delivering his route. However, the supervisor did not provide Complainant with a copy of Form 4584. The Supervisor of Customer Services followed Complainant on his route on August 19 and 26, 2011 and September 7, 2011. On August 27, 2011, the supervisor followed Complainant on his route. Complainant was not provided with a Form 4584 for any of these observations. The AJ found that Complainant did not allege, and there was no evidence in the record of any similarly situated employees who were treated differently than Complainant under the same circumstances.
Regarding claim 2, the Supervisor of Customer Services (Supervisor 2) stated that on September 8, 2011, he issued Complainant a Notice of 7-Day No Time Off Suspension for Failure to Follow Instructions/Job Performance because he engaged in wasting practices on August 15 and 19, 2011. Supervisor 2 stated that on August 15, 2011, Complainant was assigned to route 2509 and he requested 2 hours of overtime. Complainant was approved for one hour and one half overtime. However, Complainant spent 7 hours and 31 minutes, not including lunch time, on the street, going 2 hours and 29 minutes over his base street time. Complainant expanded his street time by one hour.
Supervisor 2 stated that on August 18, 2011, he conducted an investigative interview with Complainant and allowed him the opportunity to explain his actions on August 15, 2011. Complainant claimed that he had a total of 3913 pieces of Delivery Point Sequence (DPS) mail and that it was 1913 over his reference. Complainant stated that his average DPS mail was approximately 2000. Complainant stated that he had to deviate from his route for an express mail and also to call in again.
Supervisor 2 stated that on August 19, 2011, Complainant was assigned to route 2509 and was observed making deliveries from a certain location to another location. During this observation, Complainant was seen checking boxes for outgoing mail, even though he had no mail to deliver to that address, which was considered time wasting practices.
On August 31, 2011, Supervisor 2 conducted another investigative interview with Complainant. Complainant denied making motions to the box, but did check one empty box that did not have mail in it because to retrieve the outgoing mail the customer put the mail in the mailbox without the flag because of recent theft in the street. Supervisor 2 stated that he contacted the Postal Inspectors to verify Complainant's claim of theft and was informed that there had been no such reports of thefts in that neighborhood. Supervisor 2 then notified Complainant's assertions on this matter without merit. Furthermore, the AJ noted that as a result of Complainant's grievance, Agency management rescinded the Notice of No Time Off Suspension.
With respect to Complainant's allegation that when Supervisor 2 gave him the Notice of 7-Day No Time Off Suspension he said "I told you I would get you," Supervisor 2 denied making the remark. Moreover, the AJ noted that Complainant filed a grievance concerning his suspension and as a result, Agency management rescinded the suspension.
Regarding claim 3, the AJ noted that prior to September 2011, Complainant's delivery route was a "mounted" route in which most of the mailboxes were next to the curb, thus permitting Complainant to drive from mailbox to mailbox and deliver mail without leaving his vehicle. The AJ noted that the Postmaster stated that in September 2011, he inspected Complainant's route and recommended that Agency management adjust his route to facilitate efficiency of the route. For instance, the Postmaster stated that Complainant's route be changed from mounted to "park and loop," which is in essence walking. The reason the Postmaster made this suggestion was because Complainant had to dismount the majority of his mounted deliveries. The AJ noted that the Postmaster's suggestion was not to add more time to Complainant's route but to make his route more efficient.
Regarding claim 4, the supervisor stated that on October 15, 2011, he issued Complainant a Notice of 14-Day No Time Off Suspension for Failure to Follow Instructions. Specifically, the supervisor stated that on September 30, 2011, the Acting Postmaster (Acting PM) instructed a named employee (E1) to leave the building. E1 stopped in front of Complainant's case, and Complainant turned to get paperwork for E1. The Acting PM instructed Complainant to turn around and continue working. Complainant ignored these clear instructions and went through his personal belongings search for paperwork to give to E1. Complainant then found the paperwork and handed them to E1.
The supervisor stated that during the October 5, 2011 investigative interview, Complainant was asked to explain for failing to follow the Acting PM's instructions. Complainant stated that he had no answer to it. Moreover, the AJ noted that as a result of Complainant's grievance, the Notice of 14-Day No Time Off Suspension was rescinded.
Regarding claim 5, the AJ noted that on October 4, 2011, several portions of Complainant's route were changed from a mounted delivery to a "park and loop" route. On October 20, 2011, the Postmaster instructed Complainant to resume making mounted deliveries at a named street, for safety reasons. On November 9, 2011, the Postmaster instructed Complainant to make deliveries on a named street using the "park and loop" method for that day only, because a route inspection would be conducted that day.
Further, the AJ noted that on November 15, 2011, Agency management observed Complainant's driving practices and the inspector noted that he made deliveries from his vehicle on a named street. On November 17, 2011 and December 5, 2011, an investigative interview was conducted with Complainant to determine why he had not used the "park and loop" method for the named street on November 15, 2011. Complainant stated that the Postmaster authorized him to drive rather than walk. The supervisor found Complainant's response to be untruthful. On December 13, 2011, the supervisor issued Complainant a Letter of Warning for failure to follow instructions regarding deliveries on the named street.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
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. 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.
On appeal, Complainant, in essence, argues that the AJ erred in issuing summary judgment and requests a hearing on his complaint. However, in order 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. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
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 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).
Here, the undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final action implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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. 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
October 24, 2016
__________________
Date
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.
2 The record reflects that in its May 3, 2013 "Acknowledgement of Amendment to Complaint" that superseded its February 2, 2012 "Partial Acceptance/Partial Dismissal of Formal EEO Complaint," the Agency amended claim 5 to the instant complaint. The Agency also dismissed reprisal as a basis after Complainant admitted in his affidavit that he had not engaged in any prior protected activity. Therefore, the AJ only addressed race and age.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162286
2
0120162286
8
0120162286