0120140198
03-05-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120140198
Agency No. 4G-730-0026-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 27, 2013 final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Postage Due Clerk at the Agency's Tulsa, Oklahoma Processing and Distribution Center.
On July 28, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (African-American), color (black), and in reprisal for prior EEO activity when:
1. on February 16, 2012, management issued him a Notice of 14-Day Suspension;
2. on March 16, 2012, management charged him annual leave while he was suspended;1
3. on October 10, 2012, he was placed on Emergency Placement;
4. he was issued a Notice of Proposed Removal dated October 22, 2012, which was subsequently modified to a 14-Day Suspension; and
5. effective October 10, 2012, he became an unassigned full-time regular clerk, and he was reassigned to the Tulsa P&DC.2
After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on August 27, 2013, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not establish a prima facie case of race, color, and reprisal discrimination. The Agency further found that assuming arguendo that Complainant established a prima facie case of race, color, and reprisal discrimination, Agency management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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).
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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions with respect to all the subject claims. Regarding claim 1, Complainant's supervisor stated that he was the deciding official to issue Complainant a Notice of 14-Day Suspension for failure to maintain regular attendance and failure to report for scheduled duty. The supervisor stated that the Manager, Customer Service (manager) was the concurring official. The record contains a copy of the Notice of 14-Day Suspension dated February 16, 2012, the supervisor placed Complainant on notice that he was failed to report to work on the following dates: November 25, 2011 (8 hours of sick leave), November 26, 2011 (8 hours of sick leave), December 23, 2011 (.47 hours of Leave Without Pay), and January 9, 2012 (8.67 hours of SWOP). In addition, the supervisor stated that Complainant failed to report for scheduled duty on January 3, 2012.
The supervisor determined that Complainant was in violation of Sections 511.23 "Postal Employees," 511.43 "Employee Responsibilities," 665.13 "Discharge of Duties," 665.15 "Obedience to Others," 665.41 "Requirement of Regular Attendance" and 665.42 "Absence Without Permission" of the Employee and Labor Relations Manual, and Articles 10 and 19 of the National Agreement.
As a result of Complainant's grievance, the Agency agreed to expunge the Notice of 14-Day Suspension from Complainant's official personnel records, reimburse him 32 hours of administrative leave for February 23-24 and 27-28, 2012, and return his 16 hours of annual leave on February 27-28, 2012 to him.
Regarding claim 2, the supervisor stated that Complainant was initially changed with annual leave during the time of his suspension, because Complainant had vacation time scheduled during the relevant period but when error was found, his leave was made whole. Specifically, the supervisor stated at that time it was Complainant's "bid vacation time, when error was found, leave was made whole."
Further, the supervisor stated at the time of the issuance of the Notice of 14-Day Suspension, Complainant was on annual leave, the next Monday "was [a] holiday, Tuesday was a busy day because of [the] Monday holiday, Wednesday was his NSD, and it wasn't until Thursday that week that I could issues the 14 day. It was late being issued, so by the time it was issued, [Complainant] had 14 day file a grievance but never filed a grievance and I had lost track of the time as to when he was to serve the 14 day. And when he failed to show up to work, I assume it was his bid AL, never thinking he was serving his 14 day, so I put [Complainant] for AL. It was a mistake on my part. So, when we realized he was serving his 14 day, after he came back to work.... I was told as that his entire AL was restored to him. I tried to explain this to [Complainant] at the time, but he did not believe me."
Regarding claim 3, the manager stated that on October 10, 2012, he placed Complainant on Emergency Placement. The record reflects that a co-worker stated that on October 10, 2012, he threw a box by Complainant when he thought he had finished in the area he was working. However, before he could apologize, Complainant threw the parcel back at his head and called him a profane name. The co-worker further stated that Complainant then threw a bigger parcel at him and approached him with his fists clenched as if he was going to hit him, but noticed other employees were starting to gather, so he stopped. The co-worker stated that later that day, Complainant came by and hit him in the side with a u-cart and was planning to hit him again when the co-worker told him not to do it again and Complainant again called him a profane name and asked him what he was going to do about it.
Regarding claim 4, the Manager stated that he issued Complainant a Notice of Proposed Removal dated October 22, 2012 because Complainant was changed with "throwing parcel at co-worker, mistreatment of mail, use of inflammatory language, aggressive behavior, improper striking co-worker with equipment, absence without office leave."
The Postmaster stated that the Manager conducted an investigation into the incident between Complainant and the co-worker. The Agency determined that the aggressive actions by Complainant warranted removal. However, the Agency made the decision to reduce the charge to a suspension through a grievance settlement.
The record contains a copy of the Postmaster's letter dated November 28, 2012, in which she reduced the Notice of Proposed Removal to a 14-Day Suspension. Therein, the Postmaster stated that she had considered Complainant's prior disciplinary record "which contains a Suspension of 7 days dated March 19, 2011. This suspension stemmed from a similar incident involving [co-worker]. Your prior work record is marginal and your tenure of approximately 19 years does not provide mitigative relief for your current and ongoing deficiencies. You have expressed no contrition or remorse for your actions. Accordingly, I find discharge is not appropriate under these circumstances and modify the proposed discharge to a Suspension of 14 calendar days."
Regarding claim 5, the Postmaster stated that she was the deciding official to make Complainant an unassigned full-time regular clerk and reassign him to the Tulsa P&DC. Specifically, the Postmaster stated that she had a meeting with Complainant trying to resolve his behavior and he stated at that time that he did not want to work at the Downtown Station and was trying to get a bid at the Tulsa P&DC. The Postmaster stated that she then made a decision to it would be best to have Complainant reassigned to the Tulsa P&DC for all parties involved.
On appeal, Complainant questioned why it took six days from the incident to put him off work on an "emergency" placement, and also argued that the events did not happen as alleged as evidenced by the fact that many of the charges against him were dropped and the proposed removal was reduced to a suspension. Complainant alleged that management was trying to get rid of black employees by treating them more harshly, and notes his customer service job was taken away and he was moved to the processing and distribution plant. Complainant asserts that work in the processing plant was hard on his back and designed to get rid of him both because of his race and his prior EEO complaint. However, neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the proffered reasons for management's actions were a pretext for unlawful discrimination or retaliation.
Therefore, after a review of the record in its entirety, including consideration of all statements 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. 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
March 5, 2014
__________________
Date
1 On September 19, 2012, the Agency issued a final decision dismissing claims 1 - 2 for failure to state a claim. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Charles v. USPS, EEOC Appeal No. 0120130455 (April 10, 2013). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108. Additionally, the record also reflects that on April 24, 2013, the Agency consolidated claims 1 - 2 with claims 3 - 5, which is now the subject of the instant appeal.
2 In regard to claims 3 - 5, the Agency inadvertently identified the dates of alleged discriminatory dates as October 10, 2011, October 22, 2011 and November 23, 2012, instead of October 10, 2012, October 22, 2012, and October 10, 2012, respectively.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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