0120142703
01-08-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142703
Agency No. 4C-450-0115-13
DECISION
On July 24, 2014, Complainant filed an appeal from the Agency's June 20, 2014, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Paul Laurence Dunbar Post Office in Dayton, Ohio.
On September 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (Back Surgery), and age (52) when:
1. He was issued a Notice of 14-Day Suspension (No Time Off) dated May 31, 2013, for Failure to Follow Instructions/Unauthorized Overtime;
2. He was issued a Notice of 14-Day Suspension (No Time Off) dated July 30, 2013, for Failure to Follow Instructions/Unauthorized Overtime.
3. He received a Notice of 14-Day Suspension dated October 9, 2013, for Failure to Follow Instructions;
4. He was issued a Notice of Removal dated October 17, 2013, for Failure to Follow Instructions.
5. He was issued a Notice of Removal dated November 29, 2013, for Poor Performance.
6. He was issued a Notice of Removal dated December 30, 2013, for Failure to Follow Instructions.1
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 EEOC 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. Specifically, the Agency held that it provided legitimate, nondiscriminatory reasons for each disciplinary action which Complainant failed to show were pretext for discrimination. This appeal followed without specific comment. The Agency requested that the Commission affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). As to claim (1), the Supervisor averred that he issued the 14-day suspension on May 31, 2013, due to Complainant's failure to fill out a PS Form 3996 in order to request additional time to complete his route on May 21, 2013. The Supervisor noted that he had spoken to Complainant about unauthorized overtime which did not improve. As such, the Supervisor issued a 14-day suspension. The Acting Supervisor issued Complainant's 14-day suspension as alleged in claim (2). She noted that Complainant was required to fill out a PS Form 3996 for assistance or overtime if warranted and that he was to fill it out before leaving for his route. The Acting Supervisor stated that on July 23, 2013, Complainant was approved for half an hour of overtime but took one and a half hours. She noted that she provided the carriers with her cell phone number to contact her if they needed to request overtime. Based on Complainant's failure to fill out the form or contact her, the Acting Supervisor issued the 14-day suspension. As to claim (3), the Acting Supervisor stated that Complainant was approved for overtime but was 30 minutes over his request. She noted that Complainant was instructed to call if he was going to go over the preapproved overtime but failed to do so.
As to claim (4), the Acting Supervisor recommended Complainant's removal. On October 15, 2013, she noted that the Manager went out to find Complainant to let him know that he had an hour and a half to finish his route. Complainant took over two hours and failed to advise the Manager that he was running behind or did he submit the PS Form 3996. Based on Complainant's failure to follow instructions, she issued the Notice of Removal dated October 17, 2013. On November 18, 2013, the Acting Supervisor indicated that Complainant again took unauthorized overtime. As such, she recommended his removal on November 29, 2013, as alleged in claim (5). Finally, on December 30, 2013, Complainant was issued another removal action as raised in claim (6). The Manager and Acting Supervisor determined that Complainant did not complete a PS Form 3996 nor called the station to request assistance or overtime. The Acting Supervisor averred that Complainant, on December 21, 2013, used over two hours of unauthorized overtime. A Second Acting Supervisor informed Complainant to return to work by 5:00 p.m., but Complainant did not return until after 6:00 p.m. Based on Complainant's continued use of unauthorized overtime, Management issued the removal raised in claim (6). Upon review of the record, we find that the Agency has provided legitimate, non-discriminatory reasons for its disciplinary actions.
The Commission turns to Complainant to show that the Agency's reasons were pretext for discrimination. Complainant asserted that he had back surgery on February 5, 2013, and was not able to return to work until May 2013. He believed that the Agency subjected to discrimination upon his return from his injury. He needed expanded time to handle his route that had been changed while he was recovering. Upon review of the record, we find that Complainant has not substantiated his claim of discrimination. We note that Management chose to discipline Complainant based on his failure to follow the proper instructions on how to request overtime or extended time. The discipline was not issued because he needed extra time but that he did not follow Agency protocol. As such, we find that Complainant has failed to establish that the Agency's reasons were pretext for discrimination. Therefore, we conclude that Complainant did not show that the Agency's actions constituted unlawful discrimination based on his disability, race, and/or age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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 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
January 8, 2015
__________________
Date
1 We note that Complainant had grieved the disciplinary actions with the union which resulted in the reduction of the disciplinary actions from 14-day suspensions to 7-day suspensions and the October 2013 removal action to 14-day suspension. At the time of the investigation, Complainant's grievances regarding the November and December 2013 removal actions were still pending.
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0120142703
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120142703