0120102106
09-27-2010
Andrew J. Tengeres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Andrew J. Tengeres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120102106
Hearing No. 450-2009-00096X
Agency Nos. 4G-752-0306-08,
4G-752-0189-08,
4G-752-0073-09
DECISION
On April 22, 2010, Complainant filed an appeal from the Agency's March 18, 2010, final order 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. 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 order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge's (AJ) decision, finding that Complainant was not subjected to discrimination based on age and in reprisal for prior protected EEO activity, is supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant's position was Postmaster at the Agency's Lewisville Post Office facility in Lewisville, Texas. Complainant began as Postmaster in November 2006, and took over a facility which had financial and operational issues. He was tasked with resolving those issues, but when, in April 2007 the issues had not been resolved, Complainant's manager reassigned/detailed him to the Postmaster position in Allen, Texas.1 Before he took over the facility in Allen, Texas, Complainant went out on long term medical leave, beginning on May 1, 2007.
On July 8, 2008, Complainant filed an EEO complaint, Agency Number 4G-752-0189-08, alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity arising under Title VII and the ADEA when:
1. On February 9, 2008, his manager issued him letters with instruction to report for physical and psychological Fitness for Duty (FFD) exams on February 14 & 22, 2008, respectively, and;
2. On an unspecified date, he became aware his performance ratings were lowered by his manager and the District Manager and subsequently on February 29, 2008, Complainant's manager denied his request for a rating recourse to obtain a higher rating.
Complainant filed a second complaint, Agency Number 4G-752-0306-08, alleging discrimination based on reprisal when:
3. On or about May 9, 2008, he was subjected to a FFD examination;
4. On May 15, 2008, he became aware that his medical information was provided, without his written approval, to the physician who conducted the FFD examination; and
5. As of July 15, 2008, he had not been reimbursed for mileage or his sick leave re-credited.
Complainant filed a third complaint, Agency Number 4G-752-0073-09, alleging discrimination based on age (59) and reprisal when:
6. From September 2008 and ongoing, an error in his pay (40 hours of annual leave erroneously added to his sick leave balance) has not been corrected;
7. On February 26, 2009, he was scheduled for a psychiatric FFD that he attended on March 9, 2009; and
8. He did not receive the proper mileage reimbursement for attending a psychiatric FFD exam on March 9, 2009.
The complaints were consolidated for processing and 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 timely requested a hearing.
AJ's DECISION
The Agency made a Motion for a Decision without a Hearing, which Complainant opposed and which the AJ denied. The AJ held a hearing on October 21, 22 and November 2, 2009, at which sixteen witnesses testified. The AJ made factual findings regarding the testimony proffered. The AJ detailed the circumstances under which Complainant had been reassigned from the Lewisville Post Office to the Allen Post Office, and the circumstances surrounding the scheduling and logistics of the FFD exams for which Complainant had been scheduled. Complainant's manager (MO-1) first informed him that he would need to undergo a FFD exam once he had been on medical leave for nearly a year. Although Complainant was initially scheduled for the exams in February 2008, he did not undergo a FFD exam until May 2008.
MO-1 was replaced by a new manager (MO-2) in spring 2008. MO-2 was unaware of Complainant's prior EEO activity. MO-2 decided to go ahead with the request for the FFD because medical documentation submitted by Complainant's physician consistently stated that his return date was "unknown."
In February 2009, MO-2 was replaced by MO-3, who was also unaware of Complainant's EEO activity. As the Postmaster position at the Lewisville Post Office remained unencumbered, MO-3 also decided to request a FFD exam for Complainant, so that he could determine if Complainant would be able to return to his position. Complainant was scheduled for the FFD exam on March 9, 2009. Complainant subsequently retired from the Agency on May 2, 2009, never having returned to his Lewisville position.
The AJ issued a decision on February 23, 2010. In her decision, the AJ found that as to issue 2, his performance rating, Complainant had established a prima facie case of reprisal in that his supervisors were aware of his prior EEO activity, and the prior EEO activity and the rating were close in time. The AJ found that the Agency had provided legitimate, nondiscriminatory reasons for Complainant's lowered performance rating, as there was extensive testimony regarding the financial and operational issues at the Lewisville Post Office, Complainant's attempts to remedy those issues, and the Agency's attempt to aid him by sending a team of postmasters to analyze the facility operations and provide advice and feedback to Complainant. Despite these efforts, the facility did not improve to the satisfaction of MO-1. The AJ found that Complainant had not shown that the Agency's reasons for his low performance rating were mere pretext for discrimination based on reprisal.
The AJ found that Complainant had established a prima facie case of reprisal for issue 1, that MO-1 had requested a FFD exam in order to retaliate against him for his EEO activity, as MO-1 was aware of his prior EEO activity and it was sufficiently proximate in time to the FFD exam request. MO-1 testified that because Complainant had been out of work for a significant amount of time, and because the Lewisville Post Office was a large facility, the Agency needed to know when it could expect his return. The AJ found that MO-2's decision to follow through on MO-1's FFD exam request in 2008 was due to his desire to know whether Complainant would return to his Lewisville Postmaster position.
The AJ also concluded that there was no evidence of retaliatory motive on the part of Agency personnel when Complainant's medical information was provided to the FFD exam doctor (issue 4), when his mileage reimbursements were delayed and his sick leave not re-credited in a timely manner (issue 5), or when there was an error of 40 hours in his annual leave balance (issue 6). The AJ further found that there was no evidence of age discrimination for issue 6.
Finally, for issue 7, the AJ concluded that upon assuming his position in 2009, MO-3 had legitimate, nondiscriminatory reasons for deciding to send Complainant for a FFD in March 2009, given the length of time the Lewisville Postmaster position had been vacant and the length of Complainant's absence from the workplace. Although Complainant had expressed an intention to retire prior to the scheduling of the March 9, 2009 FFD exam, the AJ found there was no evidence that he had informed MO-3. The AJ noted that MO-3 was unaware of Complainant's EEO activity, and found he was not guided by a retaliatory motive when he scheduled the exam. Nor did the AJ find any evidence that MO-3 was motivated based on Complainant's age. Similarly, there was no evidence of a motivation of age or reprisal discrimination when Complainant was not fully reimbursed for mileage to travel to the FFD exam (issue 8).
In sum, the AJ found that the preponderance of the evidence did not support a finding of discrimination based on age or reprisal,2 and that Complainant had not shown that the Agency's reasons for its actions were pretextual.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. The Agency submitted a brief in which it urged us to affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Disparate Treatment - Age and Reprisal
In general, disparate treatment claims, such as the matter before us, are examined under a tripartite analysis whereby Complainant 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. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Furnco Constr. Corp. v. Waters. 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the analytical framework described in McDonnell Douglas to an ADEA disparate treatment claim). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
In the instant matter, we find that there is substantial evidence in the record to support the AJ's determinations that the Agency had put forth legitimate, nondiscriminatory reasons for each of its actions. Complainant established a prima facie case of reprisal discrimination with regard to MO-1's request that he undergo the FFD exam. However, each Agency manager, MO-1, MO-2 and MO-3, all consistently testified that due to the length of time Complainant had been out on medical leave, and the uncertainty as to his return date, a FFD exam was warranted to determine if he would be able to return to his position. Complainant did not show that any of the three managers were motivated by his prior EEO activity. Complainant also did not show that his performance rating was motivated by anything other than the results of his management of the Lewisville Post Office. As to the remaining issues regarding his leave balances, mileage reimbursements and provision of his medical information to the FFD exam physician, we find that Complainant has not shown that retaliatory or age animus were at the root of those Agency actions.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's factual findings are supported by substantial evidence in the record. We discern no basis to disturb the AJ's decision. Accordingly, after a careful review of the evidence of record, including arguments and evidence not specifically addressed in this decision, the Agency's final order 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
____9/27/10______________
Date
1 Complainant filed an EEO complaint based on race, color, national origin, sex and age regarding his reassignment to the Allen Post Office, which was the subject of EEOC Appeal No. 0120081770 (July 31, 2008).
2 We note that at no time did Complainant claim disability discrimination.
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0120102106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102106