0120110538
05-31-2012
Wilton Rodriguez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Wilton Rodriguez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120110538
Hearing No. 510-2009-00197X
Agency No. 1H-336-0028-08
DECISION
On October 24, 2010, Complainant filed an appeal from the Agency's September 23, 2010, notice of final action concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's notice of final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Casual Employee, EAS-07, at the Agency's Tampa Logistics and Distribution Center in Tampa, Florida.
The record reveals that in late January-February 2008, Complainant received EEO counseling on a claim of national origin (Hispanic) discrimination concerning alleged harassment by a 204-B Acting Supervisor (Person A) including adverse and disparate treatment with regard to breaks, off-days, and leave. Complainant alleged that the supervisor took advantage of his limited English proficiency to treat him differently from other employees. Complainant and the Agency participated in a mediation session regarding his concerns, and on March 4, 2008, entered into a written settlement agreement.
Complainant subsequently alleged the Agency breached the terms of the settlement agreement. The Agency issued a final decision finding it did not breach the settlement agreement. Complainant filed an appeal with the Commission regarding his breach claim.
In EEOC Appeal No. 0120083528 (October 27, 2008), the Commission determined that the Agency had not provided any evidence to support its final decision and presumed that the Agency was in breach of the agreement and ordered the underlying complaint be reinstated.1 Additionally, the Commission noted that Complainant claimed he was the further victim of unlawful retaliation for filing his original complaint when his employment was terminated by the Agency shortly after he signed the settlement agreement. Thus, the Commission amended Complainant's complaint to include his claim of discriminatory/retaliatory termination. The complaint, as amended, was remanded for further processing.
The Agency filed a request for reconsideration which was docketed under EEOC Request No. 0520090183. The Commission denied the Agency's request for reconsideration on February 4, 2009.
Complainant filed a formal complaint dated December 15, 2008, alleging that the Agency discriminated against him on the bases of race (Dominican), national origin (Hispanic), color (brown), age (41), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. During the period of July 6, 2007 and March 28, 2008, Complainant was harassed pertaining to breaks, schedule changes, and denial of career hiring; and
2. On July 21, 2008, Complainant was terminated from the Agency.
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). Complainant requested a hearing before an AJ but subsequently withdrew his request for a hearing and asked for a final agency decision. Thereafter, Complainant withdrew his request for a final agency decision and asked the AJ to issue a decision based on the information in the file. On September 9, 2010, the AJ issued a decision without hearing.
The Agency subsequently issued a notice of final action dated September 23, 2010. The Agency fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant states that he did not resign from his position, as stated by the Agency. Rather, he claims that he was terminated by the Agency.
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. (November 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").
In the present case, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing. Moreover, we find the record in the present case was fully developed. Under these circumstances, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
With regard to issue (1), Complainant claimed that from July 6, 2007, through March 28, 2008, he was harassed pertaining to breaks, schedule changes, and denial of career hiring. In his affidavit, Complainant stated that he was harassed daily by Person A who watched him during his breaks and lunches. Specifically, Complainant stated that on February 28, 2008, Person A accused him of taking a one-hour lunch break. Complainant denied this, however, Person A told him to clock out and go home. Complainant stated that he then spoke to the Manager of Distribution Operations (MDO) on Tour 1, who he stated found no indication he took an hour-long lunch break, and he was permitted to continue working.
Complainant stated that on February 5, 2008, Employee 1 and Employee 3 spoke to the MDO on Tour 3, the Acting Manager of Distribution Operations, and the Plant Manager on his behalf and said that Complainant felt he was being harassed by Person A. Complainant stated that the Plant Manager never addressed his concerns.
Complainant stated that Person A was not fair with regard to hours worked, days off, and holidays. Complainant stated that like many others he never got to work at least 40 hours per week when others were working overtime that same week. Complainant state that a group of employees, most of them African-American, had set days off on Saturday and Sunday every week and were working more hours than him.
In his affidavit, Complainant stated there was no harassment regarding denial of career hiring. However, he stated that the March 4, 2008 explanation given by the EEO ADR Specialist regarding the hiring process did not make sense. He stated there was no evidence if others with lower scores were hired before him.
The Agency noted that casual employees are a supplemental workforce and are not guaranteed a set number of hours of work, vacation, or sick leave. Person A stated the casual work schedule could change anytime due to mail volume or having to meet the required casual complement. Person A noted that on some occasions some casuals would only work four, six, or eight hours, depending on the time they began the tour. Person A also stated that casuals are not given specific days off and are not allowed to switch work shifts.
With regard to Complainant's claim that Person A watched him closely during breaks, Person A stated that she monitors all employees in her area for break time adherence. Person A stated that if an employee takes an extended break it is her job to address the employee. She stated that she addressed numerous casual employees about their extended breaks. Person A identified twelve employees of various races and national origins who she monitored regarding breaks and lunches.
With regard to the incident on February 28, 2008, Person A stated that she did not recall the specific date. However, she said that on one occasion she asked Complainant to clock out because he had taken an extended lunch. Person A stated that Complainant then asked to speak with the MDO of Tour 1 and Person A allowed him to do this. Person A stated that after this, since Complainant was a good worker, the MDO of Tour 1 told Complainant to clock back in and go to work.
Person A stated that when she received a request from Complainant to have his days of work or hours of work changed, she approved the request. Person A stated she did not deny any request from Complainant to have his days of work or work hours changed.
With regard to his claim that Person A denied him the opportunity to switch his schedule during holidays, Person A noted that casuals are not scheduled off for holidays and explained that according to the collective bargaining agreement, all casuals are to be scheduled to work holidays. Person A stated that she does not allow casuals to have holidays off or switch their days off during holiday weeks.
With respect to his claim regarding the denial of career hiring, we note that pursuant to provision (3) of the March 4, 2008 agreement, "(Hiring) Management has explained the hiring practices and complainants have an understanding." To the extent Complainant is claiming that there was a breach of the March 4, 2008 agreement, we note the Commission has previously found the Agency breached the March 4, 2008 agreement and we will not address a breach claim in the present case.
To the extent Complainant is claiming discrimination in that he was not hired as a career employee, Person A stated that she played no role in denying Complainant career hiring opportunities because she did not have the authority to hire career employees, as that function was performed by the Personnel Office. Additionally, Person A noted that Complainant approached her and asked how he could get permanently hired. Person A said she informed Complainant to contact personnel at the P&DC room 222 to find this information. The Agency noted that the HR Generalist stated that during the relevant timeframe no one with a lower score than Complainant was hired. Additionally, we note Complainant does not identify a specific career position for which he was not selected.
Upon review, we find Complainant failed to prove by a preponderance of evidence that he was subjected to harassment. Specifically, we find Complainant failed to establish that the Agency's actions were motivated by his race, national origin, color, age, or in reprisal for his protected EEO activity.
With regard to issue (2), the Agency noted that on June 19, 2008, upon completion of Complainant's 90-day term as a casual clerk, the Agency processed Complainant's separation as the "required break in service" needed to begin a second ninety-day term. The Agency noted Complainant was scheduled for re-hire as a casual mail handler on June 28, 2008, to begin work on Tour 1. The Agency assigned Person A supervisory responsibility for Tour 1 mail handlers. The record reveals it was subsequently determined that Tour 1 would only get two employees and that Complainant and Employee X would be assigned to Tour 3 since Tour 3 was losing 13 casual mail handlers. Ultimately, the Agency determined that due to low mail volume, neither Complainant nor Employee X were needed. The Form 50s in the record reveal that both Complainant and Employee X voluntarily resigned due to low mail volume. Moreover, the record reveals that during July and August 2008, the Agency separated four other casual employees due to low mail volume.
As the Agency has presented legitimate, non-discriminatory reasons for Complainant's separation, the burden shifts to Complainant to show that the Agency's reasons are a pretext for discrimination.
Complainant noted that Person A said that Complainant and others were going to pay the consequences if they kept being friendly with Employee 2 after Person A threatened to fire Employee 2 on November 16, 2007, for taking a long break. Complainant claimed that Person A kept her promise and terminated Complainant on July 21, 2008.
Although Complainant contends that Person A made the statement that others were going to pay the consequences if they kept being friends with Employee 2, we find there is no evidence that this statement was connected to either Employee 2's or Complainant's protected EEO activity. Upon review, we find that other than his bare assertions, Complainant has failed to provide evidence that his termination was a pretext for discrimination or retaliation. Additionally, Complainant failed to show that the Agency's failure to rehire him was based on discriminatory animus.
CONCLUSION
Accordingly, the Agency's notice of final action is AFFIRMED.
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
May 31, 2012
__________________
Date
1 Complainant was one of four Hispanic employees (Complainant, Employee 1, Employee 2, and Employee 3) who settled their complaints on the same date. All four complainants alleged a breach of the settlement agreement.
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01-2011-0538
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110538