0120083269
11-30-2010
Terry V. Apostolico, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Terry V. Apostolico,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120083269
Agency No. 4H-327-0017-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 23, 2008 final decision concerning an 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Mail Processing Clerk, PS-05, at the Agency's Orlando Downtown Station in Orlando, Florida.
On October 23, 2007, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 28, 2007, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of national origin (unspecified), religion (unspecified), disability (back/arm), age (over 40) and in reprisal for prior EEO activity when:
(1) on July 19, 2007, he was told his bid assignment could be abolished;
(2) on August 29, 2007, he was informed that he would be fired;
(3) on September 27, 2007 and October 9, 2007, he was sent home;
(4) on October 5, 2007, he received notice that there was no light duty work available;
(5) on October 12, 2007, he was told there was no work available;
(6) on October 23, 2007, he was told to return to work;
(7) on October 26, 2007, he was told to work his off day;
(8) on October 29, 2007, he was questioned regarding his PS Form 1260 and sent home; and
(9) on October 30, 2007, he was given an investigative interview and subsequently issued a Notice of Removal on December 13, 2007.1
On January 22, 2008, the Agency issued a partial dismissal. The Agency accepted claims (3) - (9) for investigation. The Agency dismissed claims (1) - (2) on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2) and on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
After the investigation of claims (3) - (9), 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 June 23, 2008, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of national origin, religion, disability, age and reprisal discrimination.2 The Agency further found assuming, arguendo, that Complainant established a prima facie case of national origin, religion, disability, age and reprisal discrimination, the Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding harassment, the Agency found that Complainant did not establish a prima facie case of harassment based on national origin, religion, disability, age and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claims (3) and (4), the Manager, Customer Services (MCS) stated that on September 27, 2007, he received documentation from Complainant's physician "requesting light duty. Complainant was told the documentation was not complete and sent home." MCS further stated that on October 9, 2007, Complainant reported to work "without management approval because he had not submitted the updated documentation and sent home until his light duty was approved."
With respect to the claim that on October 5, 2007, Complainant received notice that there was no light duty work available, the Postmaster (PM) stated that his only involvement concerning the matter was "to sign the letter prepared by [named supervisor (S1), CS Support]." Specifically, PM stated that S1 "is responsible for canvassing the twenty-two stations and branches in Orlando to see if work is available when a light duty request is received. If no work is available the letter is prepared by [S1] for my signature."
MCS stated that the Postmaster made the decision that there was no work available for Complainant. MCS stated "my only involvement was I informed them that I had no light duty at my office within my budget hours."
Regarding claim (5), MCS stated that on October 9, 2007, Complainant reported to work without provided requested documentation. MCS stated, however, that on October 11, 2007, Complainant submitted the requested documentation "but no work was available."
Regarding claim (6), MCS stated that on October 19, 2007, he called and left Complainant a message "indicating he was cleared to return to work on October 22, 2007 and he didn't return. On October 22, 2007, I left another message for Complainant and he reported to work on October 23, 2007."
Regarding claim (7), MCS denied telling Complainant to work on his off day on October 26, 2007. Specifically, MCS stated that on October 26, 2007, the Alafaya Station requested a passport clerk for October 27, 2007. MCS further stated "I spoke to Complainant and informed him that Alafaya was looking for help. He was informed if he wanted to go, I would switch his off day and give him a 3 day weekend the next weekend. I did not require Complainant to go, he said 'fine.'"
Regarding claim (8), MCS stated that on October 29, 2007, Complainant worked at the Alafaya Station and "after reviewing PS Form 1260, it showed Complainant worked six and one-half hours, and his restrictions indicated he was not to work more than six hours. When Complainant was questioned, he stated Management worked him six and one-half hours. When Management was questioned, they stated Complainant [worked] only six hours." MCS stated that as a result, Complainant was placed on Emergency Placement "for possible theft of Postal Funds."
The record contains a copy of MCS's Emergency Placement Off-duty Status (Without Pay) letter dated October 30, 2007 to Complainant. Therein, MCS placed Complainant on notice that he was being placed in an off-duty status immediately. MCS notified Complainant that this action is being taken "upon reasonable cause that retaining you in a duty status may result in a loss of Postal Funds or property in that information has been received that you falsified a postal form, which increased your pay. In accordance with Article 16.7 of the National Agreement, you are immediately placed in an off-duty (non-pay) status while this matter is thoroughly investigated."
Regarding claim (9), MCS stated that on October 30, 2007, he held the investigative interview with Complainant concerning possible fraud relating to the disputed work hours on October 29, 2007. MCS stated that according to Complainant, his supervisor "was out to get him." MCS stated that following the investigative interview, he requested a Notice of Removal for Complainant for improper conduct. MCS stated that as a result of the grievance, the subject Notice of Removal was rescinded and Complainant returned to work.
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).
Complainant, on appeal, 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.3
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
November 30, 2010
__________________
Date
1 Complainant filed a grievance regarding the December 13, 2007 Notice of Removal. As a result of a grievance settlement dated January 3, 2008, the Notice of Removal was rescinded and Complainant returned to work on January 7, 2008 at his regular scheduled time.
2 For purposes of this analysis, we assume without finding that complainant was a qualified individual with a disability.
3 On appeal, Complainant does not challenge the January 22, 2008 partial dismissal issued by the agency regarding claims (1) - (2). Therefore, we have not addressed these issues in our decision.
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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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