closed0120114039
02-13-2013
Robert L. Chatman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Robert L. Chatman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120114039
Agency No. 1J-483-0018-11
DECISION
Complainant filed an appeal from the Agency's July 8, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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
During the period at issue, Complainant worked as a Building Equipment Mechanic at the Agency's facility in Detroit, Michigan. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (61) and in reprisal for prior protected EEO activity. The Agency accepted Complainant's complaint for investigation.
In its final decision dated July 8, 2011, the Agency determined that Complainant's complaint was comprised of the following claims:
1. on December 14, 2010, [Complainant] was sent home for refusing to drive a government truck;
2. on January 19, 2011, he was issued a Notice of Fourteen Day Suspension.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 Agency's final decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that assuming arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that the Manager, Maintenance stated that he told Complainant's supervisor to send him home and issue him a suspension after Complainant had an outburst over the office two-way radio shouting at management. The Agency further found that Complainant failed to establish that the Agency's articulated reasons were pretext for discrimination. The Agency noted that the Manager asserted that a comparator who was not sent home and not issued a suspension like Complainant was not similarly situated. Specifically, the Agency found that the Manager stated that while the comparator refused to drive himself to the stations, he did not use disrespectful language on the radio like Complainant.
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. (Nov. 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 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 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. 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 Dep't of Cmty. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Claim (1)-Complainant Being Sent Home
We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record contains an affidavit from the Manager, Maintenance. Therein, he asserts that "Complainant was sent home due to his conduct, verbiage, that was being used over the maintenance two-way radio system." The record also contains an affidavit from another maintenance supervisor who witnessed the event in question. He asserts that the Manager took Complainant off the clock for failure to follow instructions and the conduct that he displayed over the radio.2
We further find that Complainant failed to establish that the Agency's articulated reasons were pretext for discrimination. While Complainant alleges that a younger employee also refused to drive that night and was not sent home, we find that Complainant has not established that they were similarly situated. The record is devoid of evidence that the comparator made inappropriate statements over the radio. We note that Complainant's immediate supervisor asserts, in an affidavit, that Complainant made the statements over the radio after being put off the clock (and told to go home); however, Complainant did not request a hearing, and as a neutral party, we are not persuaded based on the entire record that Complainant has shown that the Agency's articulated reasons were pretext for unlawful discrimination. Furthermore, while there appears to be some confusion as to whether Complainant's job assignment required him to drive a postal vehicle, the record is devoid of evidence that this confusion was based on Complainant's protected classes.
Claim (2)-Suspension
We find that the Agency articulated legitimate, nondiscriminatory reasons for issuing Complainant the suspension at issue. The record contains an affidavit from Complainant's immediate supervisor. The supervisor asserted that he was instructed by the manager to issue Complainant the suspension for failure to follow orders and back-talking on the radio. The record contains an affidavit from the Manager. Therein, he asserts that Complainant was issued the suspension because of his threatening conduct over the radio.3 Finally, the record contains a copy of the suspension. The suspension provides that Complainant was being suspended for refusing to drive to two postal stations and coming across the radio in a threatening manner to a named Manager.
We further find that Complainant failed to establish that the Agency's articulated reasons for the suspension were pretext for discrimination. While Complainant asserts that a younger employee was not issued a suspension for refusing to drive to a postal facility, the record reflects that Complainant was not issued the suspension solely for not driving to an Agency facility but also for making inappropriate comments to management on the radio. Further, we find that the comparator is not similarly situated to Complainant because the record is devoid of evidence that the comparator made similar comments over the radio like Complainant.
Accordingly, 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
February 13, 2013
Date
1 The record reflects that on March 17, 2011, the Agency amended Complainant's complaint to include another claim. The Agency dismissed this amended claim for failure to state a claim. Complainant, on appeal, does not expressly contest the dismissal of this claim; thus, we decline to address it further herein.
2 This supervisor stated that he did hear Complainant make statements on the radio to the Manager "that sounded like come down here and make me."
3 The Manager, in his affidavit, asserts that Complainant repeatedly shouted over the two-way radio to him "Come on out and tell me personally come out of that office, don't be hiding..."
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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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