0120102116
09-16-2010
Andrew Fontanetta, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Andrew Fontanetta,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120102116
Agency No. 4A110012309
DECISION
On April 13, 2010, Complainant filed an appeal from the Agency's March 18, 2010, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly found that Complainant failed to establish that the Agency subjected him to discrimination in reprisal for prior EEO activity.
BACKGROUND
At all times relevant to the events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Forest Hills Station in Flushing, New York. Investigative File (IF), Ex. 1. The record reflects that the Acting Customer Service Manager served as Complainant's first-level supervisor (S1), and the Manager of Customer Service Operations served as Complainant's second-level supervisor (S2). The record indicates that the facility's Customer Service Manager (M-1) issued Complainant a seven-day suspension on May 21, 2009, for failure to follow instructions when he did not return to the station until after 6:00 p.m., which meant that he worked one hour of unauthorized overtime. The record indicates that the suspension was rescinded on June 5, 2009.
On September 14, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII when, on May 21, 2009, he was issued a seven (7) day suspension. 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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency improperly determined that he failed to show that management subjected him to discrimination. Complainant stated that S1 authorized him to work overtime on May 4, 2009. Complainant sought to introduce testimony of a Union steward, who he claimed would testify in support of his discrimination complaint regarding comments made by management at a grievance settlement proceeding. Complainant also averred that a comparator coworker (C-2) was permitted to work overtime and was not issued a suspension. Further, Complainant proffered evidence (telephone records) that he alleged supported his contention that S1 gave him permission to finish his route on May 4, 2009.
On appeal, the Agency averred that management provided legitimate, nondiscriminatory reasons for its actions, which were articulated in the Agency's final decision. Further, the Agency contended that Complainant's arguments on appeal fail to show that the Agency's reasons are pretextual. The Agency also proffered that Complainant attempted to introduce new evidence on appeal regarding alleged telephone conversations between himself and S-1. Finally, the Agency requested that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
Initially, we note that as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO Management Directive for 29 C.F.R. Part 1614, Ch. 9 � VI. A. 3. (1999) (MD-110). In this case, Complainant seeks to introduce telephone records, the statement of the Union steward, and a new comparator (C-2), into evidence for the first time. On appeal, Complainant provides no justification for introducing new evidence and arguments, and he fails to provide a reason as to why it was not possible to introduce this evidence at an earlier time. Consequently, we decline to consider the newly presented evidence.
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").
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In this regard, the record indicates that Complainant previously engaged in protected EEO activity on three previous occasions. Aff. A at 2. The record indicates that Complainant's most recent EEO activity occurred when he initiated EEO counseling on December 12, 2008. The respective complaint (case number 4A-110-0046-09) closed on August 26, 2009, upon the Agency's issuance of a final decision. Further, M-1 testified that he was aware of Complainant's prior EEO activity. Aff. B at 2. The record also indicates that Complainant was subsequently subjected to an adverse action when he was issued a seven day suspension on May 21, 2009. Finally, we find that Complainant satisfied element (4) of the prima facie analysis because his May 21, 20009, suspension occurred while his prior EEO complaint was being processed by the Agency. Aff. A at 4. Accordingly, upon review of the record, we find that Complainant established a prima facie case of reprisal discrimination.
In response, the Agency presented legitimate, nondiscriminatory reasons for its actions. To wit, M-1 observed that Complainant had not returned to the facility by 5:00, which would have constituted one hour of overtime. S-1 had informed Complainant, and M-1, that Complainant was required to return to the facility by 5:00. IF, Aff. B at 2. M-1 testified that Complainant ultimately did not return until after 6:00 p.m., which meant that he worked one hour of unauthorized overtime. M-1 testified that there was a district wide policy for all carriers to be back to the station by 5:00 p.m. for service and safety reasons. M-1 averred that Complainant failed to notify management that he that he would be unable to complete his assignment on schedule. M-1 also averred that according to Agency guidelines, a carrier is required inform management if they are having difficulties completing their tasks in a timely manner, and shall inform management of their scheduled leaving time. Aff. B.
S2 testified that he was the concurring official for the suspension. IF, Aft. C, at 2. S2 testified that because Complainant had two prior incidents of discipline, the next step in the disciplinary process was to issue him a notice of suspension. Aff. C at 2. M-1 testified, however, that following his subsequent conversation with Complainant, he believed they had reached an understanding such that the situation would not present itself again. Aff. B, at 4. Id. M-1 averred that he decided to rescind Complainant's discipline because he wanted to show him that it was intended to be corrective in nature and not punitive. Management testified that Complainant's prior EEO activity did not influence its decision to issue discipline. Id.
Pretext
In response, Complainant identified a coworker, C-1, who he claimed was not subject to discipline for working overtime on the same day that he was disciplined for returning late to the station. In his testimony, M-1 acknowledged that C-1 did work overtime on the same day that Complainant was cited with unauthorized overtime. Aff. B at 3. M-1 testified, however, that C-1 was not subject to disciplinary action because he had already requested and had been granted extra time due to difficulties he had experienced with a relay truck driver. Id. The Agency, in citing M-1's testimony that S1 instructed Complainant to return by 5:00 on May 4, 2009 and that overtime was not authorized, rebutted Complainant's contention on appeal that S-1 authorized him to work overtime. Beyond conjecture, Complainant provides no further argument or evidence indicating that the Agency's stated reasons were a pretext for unlawful employment discrimination. Accordingly, we find that Complainant has failed to show that management's reasons for suspending him were prextual.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision finding that discrimination did not occur as alleged.
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
____9/16/10______________
Date
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0120102116
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102116