0120121926
08-22-2012
Pablo Alvarez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Pablo Alvarez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120121926
Agency No. 4G-330-0155-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 14, 2012 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 City Carrier at the Agency's North Ridge Annex in Ft. Lauderdale, Florida.
On August 15, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior protected activity when:
(1) on July 23, 2011, he was issued a Notice of Seven (7) Day Suspension;1 and
(2) on November 3, 2011, he was issued a Letter of Warning.2
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On March 14, 2012, the Agency issued the instant final decision. The Agency dismissed claim (1) on the grounds of mootness, pursuant to 29 C.F.R. � 1614.107(a)(5). The Agency then addressed the instant formal complaint on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming, for the sake of argument only, Complainant established a prima facie case of reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim (1), Complainant's immediate supervisor (S1) stated that on July 22, 2011, she issued Complainant a Notice of 7-Day Suspension for unacceptable conduct and failure to follow instructions. In the July 22, 2011 Notice of 7-Day Suspension, S1 placed Complainant on notice that he was being suspended because he was observed moving mail and parcels from a Route 3412 hamper and placing them in tubs, and when she told Complainant that it was a street function and not office work, Complainant replied "Get the hell away from me" and did not follow her instructions. S1 stated that she took into consideration a prior Letter of Warning for failure to follow instructions, when issuing him the instant Notice of 7-Day Suspension.
S1 stated that Complainant's prior protected activity was not a factor in her determination to issue him the suspension. S1 stated that the purpose of the suspension "is to correct behavior. [Complainant] does not want to follow instructions."
With respect to Complainant's allegation that S1 falsely accused him of not following instructions and also falsely accused him of making statements that he did not make, S1 denied it. Specifically, S1 stated that Complainant "has been consistently changing what he says and what has been said to him. It has a pattern of doing this with me and other management official to benefit his grievance or complaint."
The Manager stated that he concurred with S1's decision to issue Complainant a Notice of 7-Day Suspension because Complainant "acted a behavior unbecoming of a postal employee and violated the violence in the work place directive."
Regarding claim (2), S1 stated that on November 2, 2011, she issued Complainant a Letter of Warning for unsatisfactory performance. The record reflects that in the November 2, 2011 Letter of Warning, S1 placed Complainant on notice that on October 6, 2011, he was given an office count and "had time-wasting practices to include flipping through tubs and trays, bouncing while casing, searching the case for letters, unstrapping mail separately instead of all at once, staring at the case, tapping the mail constantly, stopping to case to wipe hands constantly, writing on the mail, not holding a handful of letters or an arm full of flats." S1 stated that Complainant was in violation of Sections 665.11 "Loyalty", 665.13 "Discharge of Duties," and 665.15 "Obedience to Orders" of the Employee and Labor Relations Manual; and Sections 112.21 "Efficient Service" and 112.24 "Display a willing attitude and put forth a conscientious effort in developing skills to perform duties assigned" of the M-41 Carriers Handbook.
The Manager stated that he concurred with S1's decision to issue Complainant a Letter of Warning because Complainant "fails to correct his time wasting practices resulting in unauthorized overtime us[age] and a burden on the Postal Service."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination because "crucial" evidence was omitted from the Report of Investigation and the instant final decision. Specifically, Complainant argues that he requested a copy of his witnesses' affidavits but the Agency never provided them to him. Complainant argues that he established a prima facie case of reprisal discrimination by S1, and "the preponderance of the evidence points the same hostile work environment caused by the Agency's failure to prevent abuse of power by its personnel that led to retaliation and discrimination against the Complainant."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. 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.
Because we affirm the Agency's finding of no discrimination regarding claims (1) - (2) as discussed above, we find it unnecessary to address alternative procedural grounds of these claims (i.e. mootness).
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
August 22, 2012
__________________
Date
1 The record reflects that Complainant filed a grievance over the suspension. On November 7, 2011, Complainant's grievance was settled and, as a result, the 7-Day Suspension was reduced to a Letter of Warning and would be removed from Complainant's records effective November 7, 2011.
2 The record reflects that claim 2 was later amended to the instant formal complaint.
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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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