0120160358
03-24-2016
Nathaniel S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nathaniel S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120160358
Agency No. 4B-070-0053-15
DECISION
Complainant appeals to the Commission from the Agency's September 14, 2015 final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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 accepts the appeal 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 Carrier at the Agency's Hillsborough Post Office facility in Hillsborough, New Jersey.
On December 19, 2014, Complainant initiated contact with an EEO Counselor. On March 16, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race ("Indian Asian") and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On January 23, 2015, Complainant was issued a Seven-Day Suspension, which was reduced to a Three-Day Suspension; and
2. On February 13, 2015, Complainant was issued a Fourteen-Day Suspension.
Complainant alleged four other incidents of alleged discrimination that occurred during the period of March 29, 2014 to November 8, 2014. The EEO Counselor's report stated that Complainant alleged discrimination based on race and retaliation when he "gets blamed for errors on his route when he is out from work as other CCAs cover his route." The incident date was noted as November 14, 2014. The EEO Counselor's report also stated that Complainant had filed a Merit Systems Protection Board appeal on this matter. In its April 7, 2015 letter, "Partial Acceptance / Partial Dismissal of Formal EEO Complaint," the Agency dismissed those allegations as untimely filed or because the Agency found the claims had not been brought to the attention of the EEO Counselor.
The pertinent record shows that Complainant identified his "race" as "Indian Asian." Management was aware of his race. He filed a prior EEO complaint in 2007. The record also shows that the Postmaster, the concurring official, was aware of Complainant being involved in an EEO activity. She stated that "Last year, Complainant made another EEO complaint against me." See Response to the Investigator's Question 6. The recommending official stated that she was not aware of Complainant being involved in the EEO process prior to this complaint. She issued the Notice of Suspension, after being instructed to do so by the Postmaster. The stated reasons were failure to follow instructions, delivering mail without a satchel and failing to follow safety instructions.
In this current complaint, Complainant named two responsible management officials, the Postmaster (African American, EEO activity unknown) (S1) (concurring official) and the Acting Supervisor (Caucasian, EEO activity unknown) (S2) (recommending official).
Claim One - January 23, 2015 Suspension
On January 5, 2015, the Postmaster (S1) observed Complainant delivering mail without a satchel. The Agency policy requires the carrying of a satchel. The record includes a document, "On the Job Safety Review / Analysis," which stated that carriers should curb their wheels on hills and use a mail satchel. The Postmaster also noticed, during the same incident, that the wheels to Complainant's truck were not curbed. Report of Investigation, Affidavit A., pp. 24-25. S1 directed S2 to conduct a Pre-Disciplinary Interview (PDI). During the January 17, 2015 PDI, Complainant did not dispute that he was not carrying a satchel and that his tires were not curbed. He informed his supervisor that he did not need a satchel to perform his tasks on the day and time that she saw him. He also stated that he had been given a "faulty" truck and that he had written up the problem prior to leaving the post office for the day. S2 informed Complainant that she was giving him a Seven-Day suspension for "Improper Conduct - Failure to Follow Instruction."
The record shows that others, not of Complainant's race, have been disciplined for Failure to Follow Instructions. The record shows that six Caucasians and one individual, identified as "Hindu" were similarly disciplined during the relevant period. The record does not provide documentation as to whether the individuals had prior EEO activity.
Claim Two - February 13, 2015 Suspension
The Acting Supervisor (S2) also issued Complainant a 14-Day Notice of Suspension dated February 13, 2015. S2 issued the suspension, because on February 4, 2015, she determined that Complainant incurred 50 units of Penalty Overtime (POT). Complainant had been approved for 1.5 hours of overtime, but she determined that Complainant took 2 hours of overtime. She also explained that on February 6, 2014, Complainant "swiped back to the office at 16.57, yet he made a Managed Service Point scan back to the office at 17.19. Complainant denied that he worked off the clock and that he did deliver the mail. He acknowledged that his supervisor directed that he should return to the office by 6:00 PM. He stated that he completed his work in eight hours, but forgot to punch in the clock because his fingers and toes were freezing. (ROI, Complainant's Affidavit).
During the investigation, Complainant did not identify others who were treated differently for similar offenses. The record shows that others, not of Complainant's race, were subjected to suspensions.
Complainant argued that the suspensions were unwarranted because of mitigating circumstances. S2 contended that Complainant's conduct violated Sections 665.13 and 665.15 of the Employee and Labor Management Manual (ELM). She pointed out that Complainant's disciplinary history included two Letters of Warning, a 3-Day Suspension, and a 7-Day Suspension - all issued in 2014.
The Agency acknowledges that Complainant did not use 50 units of POT, but asserts that the actions were warranted for the other reasons. Complainant asserts that there were no legitimate reasons for issuing the actions, because the Agency failed to consider the mitigating circumstances from his point of view. Complainant acknowledges that the disciplinary incidents occurred after he offered evidence of Agency improprieties in December of 2013. Complainant maintained that his customers complained to him after the office had a delay in the delivery of 7,000 parcels. He brought the matter to the attention of higher management. Complainant stated that the "Postmaster come to know that situation about [Complainant] and then she...started to retaliate against him" by issuing repeated suspensions.
At the conclusion of the investigation of the two accepted claims, 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).
Agency Decision
The Agency found that Complainant failed to prove the alleged discrimination. The Agency incorporated, by reference, its dismissal of Complainant's 2014 claims. The Agency found that Complainant failed to establish a prima case of disparate treatment based on race, because the record did not reveal any similarly situated individuals who received more favorable treatment. The Agency found that he did not establish his prima facie case of retaliation, because his complaint was settled in 2007 and the Postmaster did not indicate that she was aware of the complainant's 2007 EEO activity. The Agency found that the 2007 activity was too remote to raise an inference. The Agency then reasoned, that assuming he established a prima facie case, the Agency offered legitimate reasons for its actions which Complainant failed to show were a pretext for discrimination.
This appeal followed.
Neither party provided a brief on appeal. Complainant's statement, however, alleged that he became the "victim of covert harassment and the EEO investigator ignored the issues." As an example, he posed the question as to why management kept the earlier suspension in the file record when he proved that he was not at fault.
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. (Aug. 5, 2015) (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").
Initially, we note that Complainant did not challenge the dismissal of his four other claims. Therefore, we deem that the procedural issues were waived on appeal.
Section 717 of Title VII applies to this complaint. The law requires that federal agencies make all personnel actions free of discrimination. See 29 U.S.C. �2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race or national origin"). Similarly, the EEO laws ban retaliation for prior EEO activity. Complainant can establish a prima facie case of retaliation by presenting facts that, if unexplained, reasonable give rise to an inference of discrimination.
To prevail, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
We find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's suspensions. The deciding official stated that Complainant was issued a suspension for not carrying a satchel, not having his truck parked with his tires toward the curb, and using unauthorized overtime. The concurring official testified that she witnessed the violations. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We are troubled by Complainant's statement that the Postmaster "does not treat other Indian Employees with respect and dignity." We remind the Agency of its obligations under Title VII Section 717 to make all actions free of unlawful discrimination.
In this case, however, Complainant does not dispute that the Agency based its decision on the observations of the recommending and concurring officials. Further, we find that the record does not contain sufficient evidence to show that the Agency's reasons for these two suspensions at issue were a pretext for discrimination. We find, therefore, that the record supports the Agency's decision.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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, 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 (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, Director
Office of Federal Operations
March 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.
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