Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 19, 20140120130730 (E.E.O.C. Sep. 19, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120130730 Hearing No. 510-2102-00047X Agency No. 4G-335-0040-11 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the December 5, 2012 final Agency decision (FAD) 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’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency’s Post Office in Fort Myers, Florida. On May 4, 2011, Complainant returned from delivering his route and took a break. While on break, Complainant walked to the parking lot, started his personal vehicle, turned on the air conditioning, applied the parking brake, locked his vehicle, and returned to work inside. After Complainant finished his duties for the day, he saw his supervisor (S1) and the Postmaster standing behind his vehicle. They asked Complainant why he left his vehicle running, and Complainant responded that he liked to let it cool down before driving home. Management then informed Complainant that he was being placed in an emergency off-duty status, instructed him not to report to work until further notice, and issued him a letter the next day confirming his status. On June 6, 2011, Complainant was informed that he would be removed effective July 22, 2011, based on improper conduct/failure to follow instructions relating to the May 4, 2011 incident. Complainant’s removal was subsequently reduced to a Letter of Warning through the grievance process, and he was later compensated for his off-duty placement. 0120130730 2 On June 28, 2011 (and later amended), Complainant filed a formal complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when on May 4, 2011, he was placed in an Emergency Placement Off-Duty Status and when he received a Letter of Removal, effective July 22, 2011.1 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie case of reprisal and found that management articulated legitimate, non-retaliatory reasons for its actions. Specifically, the Postmaster explained that she observed Complainant leave his personal vehicle running while unattended in the parking lot. She noted that it was approximately 25 minutes between the time he started his vehicle and the time he returned to it in the parking lot. Complainant indicated that he wanted to cool the vehicle, and the Postmaster advised Complainant that it violated safety policies to leave a vehicle running while unattended in the parking lot. S1 stated that he placed Complainant in an emergency off-duty status for leaving his vehicle unattended. Management conducted an investigative interview and noted that he had previously been informed by two supervisors that leaving his vehicle running while unattended was a safety violation and a violation of Florida state law. Following the investigation, the Postmaster issued Complainant the Notice of Removal for improper conduct/failure to follow instructions. The Agency concluded that Complainant failed to establish that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant alleges numerous incidents of harassing behavior by management for the first time. In addition, Complainant includes witness statements in support of his allegations. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green 1 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant did not challenge this dismissal while the complaint was before the AJ or on appeal; therefore, the Commission will not address it in the instant decision. , 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating 0120130730 3 that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of reprisal, the Commission finds that the Agency articulated legitimate, non-retaliatory reasons for its actions. Specifically, S1 affirmed that he placed Complainant in an emergency off-duty status on May 5, 2011, because Complainant left his vehicle running unattended in the parking area in violation of the Agency’s safety regulations. ROI, at 112; ROI, Ex. 3. Additionally, S1 stated that he issued the subsequent Notice of Removal for the same reason and because Complainant had been made aware of the safety rule two years prior to the incident when he had the exact same violation. ROI, at 112; ROI, Exs. 4, 5. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine , 450 U.S. at 256. As Complainant chose to withdraw his request for a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Beyond Complainant's bare assertions, the Commission finds that there is no persuasive evidence in the record that Complainant’s prior protected EEO activity played a role in the Agency's actions at issue. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to reprisal as alleged. Finally, the Commission notes that Complainant, on appeal, claims that he was subjected to harassment. This claim was not previously raised by Complainant, and it is inappropriate for Complainant to raise it for the first time on appeal. Complainant is advised that if he wishes to pursue any additional claims for the first time on appeal, he should initiate contact with an EEO Counselor. 0120130730 4 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 0120130730 5 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 Actionâ€). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date September 19, 2014 Copy with citationCopy as parenthetical citation