0120170626
08-02-2018
Clifford L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clifford L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal Nos. 0120170626 and 0120170662
Hearing Nos. 470-2015-00159X and 470-2016-00026X
Agency Nos. 1C-401-0005-15 and 1C-401-0022-15
DECISION
On December 2 and 15, 2016, Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 15, 2016, final decisions concerning his equal employment opportunity (EEO) complaints 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decisions.
ISSUES PRESENTED
The issues presented are whether the Agency discriminated against Complainant on the bases of race and disability when it changed his seniority date; on the bases of race, disability, and reprisal for protected EEO activity when it issued him a Letter of Warning; and on the bases of color, disability, and reprisal when it issued him a Letter of Warning in lieu of a 7-Day Suspension.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator, PS-08, at the Agency's Processing and Distribution Center in Louisville, Kentucky.
On December 17, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and disability when, on October 3, 2014, he became aware that his seniority had been changed by management. He subsequently amended the complaint to allege that the Agency discriminated against him on the bases of race, disability, and reprisal for protected EEO activity when, on January 8, 2015, he was given a Letter of Warning. On June 11, 2015, Complainant filed a second formal complaint alleging that the Agency discriminated against him on the bases of color, disability, and reprisal when, on or around April 7, 2015, he was issued a Letter of Warning in Lieu of a 7-Day Suspension.2
1. Seniority Change
The record contains two "PVS Rosters" that list employees according to seniority. Complainant is listed as 29th out of 33 employees on a September 12, 2013, roster. He is listed as 33rd out of 34 employees on an August 7, 2014, roster. Four employees, one African American employee and three Caucasian employees, who were behind Complainant on the September 2013 roster are ahead of him on the August 2014 roster. Both rosters identify Complainant's seniority date as April 6, 2013.
Complainant has alleged that the Agency discriminatorily changed his seniority date. According to Complainant, the Agency erroneously changed the seniority date of an African American co-worker (CW1) to be above his seniority date.
The Transportation Manager (S1) stated that he changed the seniority dates of Complainant and four other employees because the Human Resources Department had entered incorrect dates. He also stated that "PSE conversions were input in the order the employees began working in PVS." According to S1, Complainant "was on detail from the customer service side of the house and wasn't officially accepted as" an employee of Motor Vehicle Services (MVS). As a result, S1 placed Complainant behind the PSEs who already were working as Motor Vehicle Operators.
2. January 8, 2015, No Tolerance Letter of Warning
In a January 5, 2015, No Tolerance Letter of Warning that Complainant received on January 8, 2015, the Transportation Supervisor (S2) charged Complainant with failure to follow safety practices and procedures. S2 stated in the letter that, on December 5, 2014, Complainant "struck a stationary vehicle with [his] postal vehicle." She also stated that Complainant over-steered his tractor while positioning his trailer at the dock doors and that "[t]he bolt on the tractor muffler housing made contact with the trailer causing a hole and rip in the right side of the trailer." S2 and a union representative signed a January 20, 2015, settlement agreement stating that the letter of warning would be reviewed in six months and removed from Complainant's record if he had no further incidents.
Complainant stated that, while trying to avoid hitting a pole, he caught an exhaust guard on the trailer that he was pulling and that this resulted in a small hole in the trailer. Noting that no other vehicles were involved in the accident, Complainant argued that the letter inaccurately stated that he had hit another vehicle. He alleged that the Agency issued the letter of warning in retaliation for his EEO complaint about the change in his seniority status. In that regard, he asserted that S2 consulted with S1 and "was aware of the EEO before the retaliation occurred." Complainant argued that his race was a factor in the decision to issue the letter because S2 consulted with S1 and that his medical condition was a factor because it was a factor in the initial EEO complaint.
In her February 26, 2015, affidavit, S2 stated that she was not aware of Complainant's EEO activity prior to January 5, 2015. She also stated that she made the decision to issue the letter of warning and that no other management official participated in the decision. She identified five employees under her supervision who also received discipline for behavior similar to Complainant's. Three of the employees are Caucasian, one is African American, and one is Hispanic. The record contains copies of No Tolerance Letters of Warning issued to the five employees between April 4 and December 24, 2014.
3. April 7, 2015, No Tolerance Letter of Warning in Lieu of a 7-Day Suspension
In an April 7, 2015, No Tolerance Letter of Warning in Lieu of a 7-Day Suspension, S2 again charged Complainant with failure to follow safety practices and procedures. S2 stated in the letter that, on March 13, 2015, Complainant struck a utility pole and broke the right-side mirror of his vehicle. S1, as the Reviewing Authority, also signed the letter. S2 and a union representative signed an April 8, 2015, settlement agreement stating that the letter of warning would be reviewed in twelve months and removed from Complainant's record if he had no further incidents.
Complainant asserted in his affidavit that the letter of warning was "incomplete," but he did not explain why he believed that to be the case. He also asserted that the Agency retaliated against him for questioning management and the union regarding the change in his seniority. He argued that he was not given the specific union representative he requested or the required 14 days within which to file a grievance. In addition, Complainant stated that two other employees (CW2 and CW3) received letters of warning.
In her September 1, 2015, affidavit, S2 stated that she issued the letter of warning. She noted that this was Complainant's second accident in three months and that he had received a previous letter of warning. She also noted that she had issued No Tolerance Letters of Warning in Lieu of 7-Day Suspensions to CW2 and CW3 and letters of warning to three other Caucasian employees. S2 denied that Complainant's color, medical condition, and prior EEO activity were factors in her decision to issue the letter of warning. In response to the EEO Investigator's question whether she was "aware of Complainant being involved in EEO activity prior to this complaint," S2 stated, "No." She replied, "N/A" to the following question: "What was your personal involvement, if any, in the prior EEO case(s) filed by the Complainant? Include in your response whether or not you completed an affidavit, attended mediation with him for the prior EEO case, provided testimony at an EEO hearing, etc."
S1 stated that he became aware of Complainant's prior EEO activity when he received "an EEO Investigative Affidavit" around January 29, 2015. He explained that the Agency issued the letter of warning because Complainant "struck a stationary object while backing." He noted that he was the concurring official in the discipline issued to CW2 and CW3. S1 stated that the Agency had issued eight No Tolerance Letters of Warning in the previous six months. He also stated, "It's very simple, if you get in an accident and it's deemed the driver's fault you will receive discipline."
The record establishes that CW2 received a June 30, 2014, No Tolerance Letter of Warning in Lieu of a 7-Day Suspension and CW3 received a December 24, 2014, No Tolerance Letter of Warning in Lieu of a 7-Day Suspension. Neither CW2 nor CW3 has filed an EEO complaint with 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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, 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
The parties raise no arguments on appeal.
STANDARD OF REVIEW
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 (EEO MD-110), at Chap. 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
To prevail in a disparate-treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
We assume, for purposes of analysis only and without so finding, that Complainant has established prima facie cases of discrimination based on race, color, disability, and reprisal.
We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. S1 stated that he changed Complainant's seniority date because the Human Resources Department had entered an incorrect date. The January 5, 2015, No Tolerance Letter of Warning stated that Complainant over-steered his tractor while positioning his trailer and that this resulted in a hole in the side of the trailer. The April 7, 2015, No Tolerance Letter of Warning in Lieu of a 7-Day Suspension stated that Complainant struck a utility pole and broke the right-side mirror of his vehicle. S1 noted that, "if you get in an accident and it's deemed the driver's fault you will receive discipline."
Complainant has not shown that the articulated reasons are a pretext for discrimination. He has not established that the Agency's reasons are unworthy of credence or that discriminatory reasons more likely motivated the Agency's actions. For example, although Complainant disputed the change in his seniority date, he did not refute S1's statement that he began working in MVS on a detail assignment rather than as an official MVS employee. Similarly, although Complainant noted that his first accident did not involve another vehicle, he nonetheless acknowledged that he in fact had an accident. He asserted that the April 7, 2015, No Tolerance Letter of Warning was "incomplete," but he did explain why he believed it to be incomplete. Moreover, he not deny that he had the second accident.
Further, Complainant has not shown that the Agency treated him less favorably than it treated similarly situated employees not of his protected groups. He offered no evidence that any of the employees ahead of him on the seniority list received credit for time spent while detailed to MVS. Likewise, he cited no evidence that the Agency failed to discipline other employees who had accidents similar to Complainant's accidents. On the contrary, the record establishes that the Agency also issued letters of warning to other employees who had accidents. We find, therefore, that Complainant has not proven that the Agency discriminated against him on the basis of race, color, disability, or reprisal.
In reaching this conclusion, we rely on documentary evidence in the record and S1's affidavit testimony. We give no weight to the affidavit testimony of S2. The Report of Investigation for Complainant's first complaint, EEO Complaint Number 1C-401-005-15, contains an affidavit that S2 signed on February 26, 2015. Yet, in her September 1, 2015, affidavit in the Report of Investigation for EEO Complaint Number 1C-401-0022-15, S2 claimed that she was not aware of Complainant's prior EEO activity. S2 is not a credible witness. We strongly urge the Agency to take all necessary steps to ensure that managers and supervisors understand their obligation to provide truthful testimony during the processing of EEO complaints.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision and its finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___8/2/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant also alleged that he was discriminatorily denied the right to file a grievance. The Agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1) on the ground that it failed to state a claim because it constituted a collateral attack on another forum's proceeding. We find that the Agency's dismissal of this claim was proper. Complainant may not use the EEO process to lodge a collateral attack on another proceeding, including matters related to the grievance process. See Erika H. Dep't of Labor, EEOC Appeal No. 0120181326 (May 11, 2018) (citing Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998)); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
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