Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 7, 20150120131877 (E.E.O.C. Apr. 7, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120131877 Agency No. 4G-330-0265-12 DECISION On April 18, 2013, Complainant filed an appeal from the Agency’s March 12, 2013 final decision 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Sunset Miami, Florida Post Office. On September 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: (1) on May 22, 2012, he was called into the office to discuss a missed Red Plum scan occurring on May 15, 2012; (2) on May 25, 2012, he was called into the office to discuss a missed scan occurring on May 24, 2012; (3) on May 29, 2012, he was issued a 14- Day No Time Off Suspension; (4) on May 31, 2012, he was called into the office to discuss a missed Red Plum scan occurring on May 22, 2012; (5) since September 19, 2012, he was sent home after he cased his route because no work was available within his physical limitations; and (6) on September 24, 2012, his light duty forms were not accepted. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 0120131877 2 ANALYSIS AND FINDINGS We find that even assuming that Complainant presented a prima facie case of retaliation, the preponderance of the evidence does not support a finding that the Agency’s legitimate, non- discriminatory reasons were pretext for unlawful retaliation. Specifically, we note that when asked why he believed his prior EEO activity was a factor in the actions taken against him, Complainant stated that it was a reason for his supervisor (S1) to harass him. However, Complainant offered no other testimony or evidence to support his belief. In addition, Complainant offered no evidence to refute the explanation that he was given investigative interviews on May 22, 25, and 31, 2012, because he failed to scan the Red Plum on May 15 and 22, 2012. and failed to scan an MSP label on May 24, 2012. Additionally, Complainant offered no evidence to refute the explanation for the issuance of the suspension for failing to scan, and the suspension was progressive in nature. Although Complainant contended he always scans the Red Plum or the flyer in the mornings and keeps records of it, the Saturation Scan Report reflects that Complainant failed to scan the Red Plum on his route on May 15, 2012. In addition, the record is devoid of evidence to refute the Agency’s explanation that he was sent home since September 19, 2012, after performing his casing duties because he had a five- pound restriction that prevented him from lifting trays, packages, or tubs necessary for performing delivery duties. Lastly, Complainant failed to offer any evidence to refute the explanation that his light duty forms were not accepted because the forms were incomplete. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision.1 1 On appeal, Complainant attempts to dispute the findings relative to Claim 5 by asserting that the only job function he was unable to perform was the “park and loop” delivery method. Complainant asserts that he could have performed part of his delivery functions and taken on an auxiliary route to fill his eight-hour shift. The record shows that management officials did not want to split up the delivery function and that nothing in the record points to Complainant’s prior EEO activity as a motive for sending him home. We note that Complainant did not raise a claim of disparate treatment or the denial of a reasonable accommodation on the basis of his disability. Accordingly, Complainant’s arguments on appeal are not persuasive. 0120131877 3 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. 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 0120131877 4 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 Date April 7, 2015 Copy with citationCopy as parenthetical citation