0520150364
10-01-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520150364
Appeal No. 0120133021
Agency No. 4F940018010
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Kian R. McCarthy v. U.S. Postal Service, EEOC Appeal No. 0120133021 (April 15, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Post Office in Sausalito, California. On December 14, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability, age (56), and in reprisal for prior protected EEO activity when, on September 2, 2010, Complainant was instructed to attend a Fitness for Duty Examination (FFDE), and on December 8, 2010, Complainant was issued a Notice of Removal.
Complainant had previously requested a hearing before an EEOC Administrative Judge (AJ). The AJ granted a summary judgment in favor of the Agency and issued a decision on July 19, 2013. The AJ analyzed Complainant's claims under a disparate treatment framework and found no discrimination. The AJ determined that even assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency issued the FFDE because of Complainant's most recent behavior, which the supervisor outlined in the initial request and a memorandum to the Associate Area Medical Director for the FFDE. In addition, the AJ found that it was undisputed that no action was taken against Complainant as a consequence of the FFDE. The AJ determined that Complainant presented no evidence showing that the Agency's reasons for ordering Complainant to attend the FFDE were pretext for unlawful discrimination or reprisal.
In regards to the removal, the AJ noted that the matter had been heard by an arbitrator and the arbitrator found that Complainant had committed the acts as charged in the Notice of Removal, i.e., a pattern of unauthorized overtime and reckless and unsafe driving practices. The AJ determined that the record showed that these actions were part of a long history of similar infractions. The AJ found that removal, rather than a lesser penalty, was warranted as the next step in progressive discipline. Thus, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for issuing the Notice of Removal, and Complainant failed to show that the reasons were pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination or reprisal as alleged. Subsequently, on July 25, 2013, the Agency issued a final order adopting the AJ's finding.
On appeal, Complainant argued that the AJ erred in granting summary judgment in favor of the Agency. Complainant argued that the AJ relied on the arbitration decision's erroneous legal analysis and that his removal was based on pretextual allegations of misconduct. Complainant argued that the AJ erred in making factual findings which ignored the evidence that he was removed shortly after the FFDE concluded that he was fit to work. Further, Complainant argued that the Agency ignored the results of the FFDE which, according to him, stated that he should have been provided a reasonable accommodation. Accordingly, Complainant requested that the Commission reverse the final order.
We previously determined that the AJ's issuance of a decision without a hearing was appropriate. We agreed with the AJ that assuming arguendo that Complainant had established a prima facie case of discrimination and reprisal, he had failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In particular, Complainant's supervisor requested that Complainant attend an FFDE based on Complainant's bizarre behavior and two reported road rage incidents. Additionally, the supervisor issued Complainant the Notice of Removal based on numerous instances of unauthorized overtime and additional incidents of unsafe driving. It was noted that Complainant's prior disciplinary history was considered in arriving at the removal decision. We then affirmed the Agency's final decision fully implementing the AJ's decision.
In his request for reconsideration, Complainant reiterates arguments made in his initial appeal. Complainant contends that the appellate decision involved a clearly erroneous interpretation of material facts and federal law, and also failed to mention obvious evidence of discrimination by Agency officials. Complainant also argues that our previous appellate decision is incomplete in that it does not discuss his previous charge of retaliation. In the request, Complainant states that management was well aware of his need for an accommodation and failed to provide one. Complainant contends that along with medical documentation in his personnel folder, he had also notified a supervisor of his mental disability prior to being terminated. Complainant contends that his termination was not progressively issued. Complainant states that he should have received a 14-day suspension prior to being terminated, and that he had only received a 7-day suspension. Complainant contends that the Agency purposely skipped the 14-day suspension and by doing so makes the termination improper, arbitrary and capricious. Complainant seeks the Commission to reconsider our previous appellate decision and requests that Complainant be immediately reinstated back to his position with the Agency.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120133021 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's
Director
Office of Federal Operations
October 1, 2015
__________________
Date
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