0120112921
10-25-2011
Clarence C. Houser, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Clarence C. Houser, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120112921
Agency No. 4C-150-0032-09
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s April 19, 2011 final decision concerning
an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Part-Time Flexible
(PTF) City Carrier at the Agency’s East Liberty Station facility in
Pittsburgh, Pennsylvania.
On May 23, 2011, Complainant filed the instant formal complaint. Therein,
Complainant alleged that the Agency discriminated against him on the
bases of age (over 40) and in reprisal for prior protected activity when:
1. on February 19, 2009, his restrictions were violated when he was
given an hour of overtime;
2. he was issued a Notice of Removal dated March 9, 2009, related to
incidents that occurred on February 19 and 23, 2009;
3. on or about April 3, 4, 6, and 7, 2009, he was charged Absent Without
Official Leave (AWOL) for a Family Medical Leave Act (FMLA) condition;
4. he was charged AWOL for an FMLA condition;
5. on June 11, 2009, he was issued an Emergency Placement in an Off-
Duty Status; and
6. on June 12, 2009, he was terminated.1
After the investigation, Complainant was provided 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. The record reflects that by a document titled “Order of
Dismissal” dated March 8, 2011, the AJ cancelled the hearing request
on the grounds that Complainant did not comply an Order to Show Cause
relating to the instant formal complaint. The record further reflects
that the AJ remanded the complaint to the Agency, and the Agency issued
the instant final decision pursuant to 29 C.F.R. § 1614.110(b).
In its April 19, 2011 final decision, the Agency found no discrimination.
The Agency found that Complainant did not show by a preponderance of
the evidence that he was discriminated against on the bases of age and
retaliation. The Agency further concluded that Complainant did not prove,
by a preponderance of the evidence, that the Agency’s proffered reasons
for its actions were a pretext for discrimination.
Regarding claim 1, Complainant’s supervisor (S1) stated that on February
19, 2009, he assigned Complainant one hour of overtime. S1 stated that
at that point, Complainant did not submit a Form 3996 for assistance.
Moreover, Complainant did not say that he could not work overtime.
S1 further stated that Complainant was asked “to provide medical
documentation on the [February 19, 2009], he did not state he could not
do the extra work. He had to be instructed by his union official to
provide us documentation.”
S1 rejected Complainant’s assertion that other named PTF employees
were treated differently regarding the overtime assignments because they
were given proper forms to fill out, were sent to the medical unit,
were accommodated for duties and were not issued Notice of Removal.
S1 stated “none of these named employees were assigned overtime if
they had proper paperwork indicating they should not work more than eight
hours.” S1 further stated that on February 16, 2009, Complainant “was
specifically instructed to produce medical documentation stating that he
should not work more than eight hours. The Complainant did not submit
such documentation; therefore, the Complainant was assigned the work. The
Complainant attempted to justify that he incurred an ‘at-fault’
accident was the result of him being given the assignment and not of
his doing.”
Regarding claims 2 and 6, the Supervisor Customer Services (SCS)
stated that on March 9, 2009, he issued Complainant a Notice of Removal
for Failure to Follow Instructions and Failure to Perform Duties in
a Safe Manner, effective April 14, 2009. In the Notice of Removal
dated March 9, 2009, SCS stated that on February 19, 2009, Complainant
had an “at-fault” motor vehicle accident when he hit a car from
behind, thereby causing approximately $2,000 damage to the car, and
approximately $3,000 damage to the postal vehicle. SCS further stated
that on February 23, 2009, Complainant was assigned to carry Route 50.
SCS stated that when Complainant was given this assignment, he was also
provided a sheet by a carrier who cased the route indicating the location
of every relay box he was required to deliver mail from. SCS stated,
however, Complainant did not deliver the mail from one relay box which
caused approximately 54 residences and many customers not to receive
mail for that day. In addition, SCS stated that the collection mail
was not picked up from these customers due to Complainant’s failure
to perform his duties in a conscientious manner.
In the March 9, 2009 Notice of Removal, SCS notified Complainant that
during the February 24, 2009 Pre-Disciplinary Interview, he “said
that the vehicle you hit was in your view for approximately sixty yards.
However, when approaching the red light to stop, you could not stop due
to a leg cramp. You stated that you couldn’t warn the driver in the
vehicle that was stopped at the red light and that you were traveling
approximately two (2 mph) miles per hour. You said that you think you
maintained a safe distance behind him and that you believe you were
traveling at a safe speed. You said that a bike lane was in the right
lane so you could not have gotten in the right lane to prevent the at
fault motor vehicle accident. You said that it was too late to veer
over to the other lane because you were trying to brake. You stated
that you have had five industrial accidents in the past five years and
that you take pain pills and sometimes get hyper. You said that the
pain pill bottles does not tell you that you cannot drive when taking
this medication.”
SCS stated that Complainant was also asked to explain his actions on
February 23, 2009. SCS stated that according to Complainant, he stated
that he delivered all the mail from the relay boxes “that were visible
to you. When you were asked about the relay box located at [provided
address], you said that you do not know if you delivered the mail from
that box or not. You then said that ‘if that box was the one I think
it is, there was no mail in it.’ When you were asked if you contacted
your supervisor at the time that you realized there was no mail in a
box, you stated that you did not. When asked if you had a copy of the
instructions with reference to which boxes you were supposed to be working
mail out of, you said that you did have a copy of the list, and in fact,
[provided address] was listed on your carrier instructions.”
SCS stated that following the February 24, 2009 Pre-Disciplinary
Interview, he found Complainant’s responses to be without merit.
SCS determined that Complainant’s failure to follow instructions “has
cost the United States Postal Service in its reputation to provide quality
service to our customers, and to provide safety to our customers.”
SCS stated that Complainant was in violation of the follow sections of
the Employee and Labor Relations Manual: Section 665.13 “Discharge
of Duties,” Section 665.15 “Obedience to Orders,” Section 665.21
“Incomplete Mail Disposition,” Section 814.2 “Responsibilities,”
and Section 831.332 “Driver Responsibility.”
SCS stated that Complainant was also in violation of the follow sections
of the City Deliver Carriers Duties & Responsibilities Methods Handbook,
Series M-41: Section 112.4 “Safety,” Section 112.21 “Obey the
Instructions of your manager,” Section 812.1 “Safety Practices,”
and Section 812.2 “Observe all traffic regulations prescribed by law.”
Furthermore, SCS stated that he took Complainant’s following prior
record into consideration in issuing him a Notice of Removal: Complainant
was issued a Notice of Removal for Failure to Follow Instructions dated
October 9, 2008 which was reduced to a Fourteen (14) Day Suspension
on January 23, 2009; was issued a Fourteen (14) Day Suspension for
Failure to Follow Instructions/Delay of Mail dated September 12, 2008,
which was reduced to a Seven (7) Day Suspension; and on April 19, 2009,
Complainant was issued a Letter of Warning for “Failure to Properly
Perform the Duties of Your Position.” Moreover, SCS stated that he
did not discriminate against Complainant based on his age and prior
protected activity.
The Manager (M1) was the concurring official concerning Complainant’s
removal. M1 stated that during the relevant time, she was not aware of
Complainant’s prior protected activity. Furthermore, M1 stated that
Complainant’s age and prior protected activity were not factors in
management’s decision to issue Complainant the Notice of Removal.
Regarding claims 3 and 4, S1 stated that he does not recall the dates
in question but recalled that Complainant requested time off for his
doctor’s appointments. Specifically, S1 stated “in general, if
the Complainant had FMLA approved leave, the eRMS system would have
reflected family sick leave. If the Complainant did not call in as
required, the eRMS system would reflect AWOL. Apparently, if the eRMS
system reflected AWOL, the Complainant did not subsequently provide the
appropriate paperwork to count the dates as family sick leave.”
M1 stated that in April 2009, Complainant was charged AWOL for an FMLA
condition because he did not provide medical documentation to support
his absences.
Regarding claim 5, the Acting Manager (AM) stated that on June 11, 2009,
he issued Complainant an Emergency Placement in an Off-Duty status because
Complainant failed to follow a direct order to return to his case and
continue working. AM stated that Complainant then proceeded to follow a
named employee to his office ignoring direct orders to return to his case.
Furthermore, AM stated that Complainant was observed double handling
the mail by taking it out of his assigned car and putting it on a truck.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that before the week of February 19,
2009, he knew he had a doctor’s appointment but did not want to ask
S1 because “he would always refuse my leave for Dr. appointments and
updates on my restriction at the Medical Unit and Room 2012 Customer
Service.” Complainant further argues that his medical documentation
“meant nothing to [AM]. He did what [S1] told him to do.”
Further, Complainant argues that on February 23, 2009, a manager (M2)
assigned him to Route 50 and “for instructions, which the carrier that
organized the route had done. He insist[ed] it was my responsibility.
[M2] never gave me any other instructions on what to do if anything goes
wrong. Since I’ve delivered relay box mail before, I never thought
any thing would go wrong. When I went to the first box I realize then I
needed that 3996 form to tell me which mail group I was to begin with.
I was carrying extra mail that should have been in another box to the
end of route. This was a physically difficult day. Another carrier
organized the route the next day which ma[e] the route easier.”
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).
As already detailed, Agency management witnesses have articulated
legitimate, nondiscriminatory reasons for the actions taken against
Complainant. A thorough review of the record reveals that Complainant
has failed to prove, by a preponderance of the evidence, that these
proffered reasons were really a pretext for prohibited discrimination
based on Complainant’s age or retaliatory animus. Complainant, on
appeal, has provided no persuasive arguments indicating otherwise.
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.
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
October 25, 2011
__________________
Date
1 The record reflects that claims 4 – 6 were later amended to the
instant formal complaint.
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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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