01a50023
03-07-2005
Thomas L. Blume, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas L. Blume v. United States Postal Service
01A50023
March 7, 2005
.
Thomas L. Blume,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50023
Agency No. 1C-401-0053-03
DECISION
On June 25, 2003, complainant filed a formal EEO complaint in which
he claimed that the agency discriminated against him on the bases of
his age (54) and in reprisal for his previous EEO activity under the
Age Discrimination in Employment Act when on February 26, 2003, he was
issued a Letter of Decision - Removal, effective March 21, 2003.
The agency accepted the complaint for investigation. Subsequent to the
investigation, the agency issued a final action dated September 17,
2004, wherein it determined that no discrimination occurred. The agency
determined that complainant failed to establish a prima facie case of
age discrimination. According to the agency, complainant failed to
identify similarly situated employees outside of his protected group
who were treated more favorably than complainant. The agency found
that complainant failed to show that other Maintenance Mechanics at his
facility under the age of 40 who violated their last chance agreement
retained their employment with the agency. The agency also determined
that complainant failed to establish a prima facie case of reprisal.
According to the agency, the actions taken against complainant did not
follow his previous EEO activity within such a period of time that a
retaliatory motive can be inferred. The agency stated that its reasons
for removing complainant were his failure to comply with the terms of
his last chance agreement and his threatening behavior after he failed
to provide the required documentation to support his absence from work.
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of age discrimination and reprisal.
Next, we shall consider whether the agency articulated a legitimate,
nondiscriminatory reason for its actions. The agency stated that
complainant signed on October 1, 2002, a last chance agreement that
provided in part that he is required to submit evidence, to the
satisfaction of management, justifying the reason for being absent.
The agency noted that the last chance agreement also provided that
failure to provide acceptable documentation, immediately upon his return
to duty, will result in him being charged absent without leave and he
will be removed immediately. The agency stated that complainant failed
to comply with the last chance agreement when he failed to provide
the required documentation to support his absence. The agency further
stated that when complainant was questioned about his absence, he became
violent, loud, irate and threatening to the point that he had to be
physically removed from the room. The agency stated that its decision
to remove complainant was also based on his prior disciplinary record.
According to the agency, complainant previously received a letter of
warning for unsatisfactory attendance and notice of proposed removal for
improper conduct. The agency stated that complainant exhibited similar
violent and threatening behavior for which he received prior discipline,
and his conduct was a violation of the last chance agreement. We find
that the agency articulated legitimate, nondiscriminatory reasons for
its removal of complainant.
A review of the record reveals that complainant has not established
that the agency's stated reasons were pretext intended to mask
discriminatory intent. Complainant claimed that six employees were
treated more favorably in the same or similar circumstances. The record
indicates that one of these employees received a last chance agreement
and no further action was taken against this employee because he kept his
behavior under control during the relevant time period. Two of the cited
comparisons were not assigned to the same work facility as complainant.
One of the cited comparisons was a management employee. As for the
other two comparisons cited by complainant, an investigation found that
one comparison was not at fault and thus did not receive discipline,
and there is no evidence in the record that the other comparison was
involved in a situation that may have warranted discipline. The record
also contains the names of ten other employees that had their proposed
disciplinary actions reviewed by the official who upheld complainant's
proposed removal. The record indicates that this official upheld eight
of ten proposed disciplinary actions, with a clear majority of such
proposed actions being upheld among employees both within and outside of
complainant's protected age group. We find that complainant has failed to
establish, by a preponderance of the evidence, that the agency's stated
reasons for removing him were pretext intended to mask discriminatory
intent. It is evident that complainant was issued the discipline at
issue based on his failure to comply with the last chance agreement,
his threatening behavior toward management, and his prior misconduct
and disciplinary record.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
action finding no discrimination, because a preponderance of the record
evidence does not establish that either reprisal or age discrimination
occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 7, 2005
__________________
Date