Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionJul 10, 2014
0120141663 (E.E.O.C. Jul. 10, 2014)

0120141663

07-10-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 0120141663

Hearing No. 450-2013-00268X

Agency No. 4G-752-0072-13

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 6, 2013 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.

BACKGROUND

During the period at issue, Complainant worked as a City Carrier at the Agency's White Rock Station in Dallas, Texas.

On February 9, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior EEO activity when:

1. on December 12, 2012, he was issued a Fourteen (14) Day Suspension for Unsatisfactory Work Performance/Failure to Follow Instructions;

2. since December 20, 2012 and ongoing, his van was replaced with a Long-Life Vehicle (LLV);

3. on January 19, 2013, he was subjected to a Pre-Disciplinary Interview (PDI); and

4. on January 24, 2013 and February 5, 2013, his manager threatened him when he (the manager) made the comment that he was a patient man and he would get Complainant sooner or later, and that he would soon be walking Complainant out of there.

After the investigation of the instant formal complaint, 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. By an Order entitled "Order of Dismissal of Hearing Request" dated January 16, 2014, the AJ cancelled the hearing request on the grounds that Complainant failed to respond to her orders. The record further reflects that the AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).

In its March 6, 2013 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex and reprisal discrimination. The Agency further found that assuming, for the sake of argument only, Complainant established a prima facie case of race, sex and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.

Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and retaliation. Moreover, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part 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).

Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Manager, Customer Services (Manager) stated that he issued Complainant a Fourteen (14) Day Suspension for Unsatisfactory Work Performance and Failure to Follow Instructions on two separate occasions. Specifically, the Manager stated that on November 19, 2012, Complainant "failed to follow my instructions to get off his phone and return to casing his mail. He blatantly refused to follow my instructions and continued to talk on the phone and not case his mail."

The Manager also stated that on November 28, 2012, Complainant "failed to follow my instructions when he did not deliver all of his advos (Morning news). He never asked or received approval to curtail this mail. Instead, [Complainant] brought the advos back from his route and placed them in a u-cart and then placed a tray and a bucket on top of them. The advos did not get delivered until Thursday, which delayed them by one day."

The record contains a copy of the December 20, 2012 Fourteen (14) Day Suspension. Therein, the Manager placed Complainant on notice that he was in violation of Section 665.15 of the Employee Labor Relations Manual and Sections 112.1, 131.41, and 131.44 of the Handbook M-41. The Manager also stated that he took into consideration Complainant's 7-Day Suspension that was issued to him on September 20, 2012, before issuing him the Fourteen (14) Day Suspension. Moreover, the Manager stated that Complainant's race, sex and prior protected activity were not factors in his decision to issue him a Fourteen (14) Day Suspension.

The Manager, Customer Service Operations was the concurring official concerning Complainant's Fourteen (14) Day Suspension. The Manager, Customer Service Operations stated "I concurred on the discipline because it was obvious based on the notes regarding the incident that the carrier continues to fail to follow instructions."

Regarding claim 2, the Manager stated that Complainant's van was replaced with an LLV, because the van was not sufficient for the mail Complainant received for his route, and that the LLV was more efficient. For instance, the Manager stated that Complainant's former van "would not be efficient for [Complainant] because he does the entire route and the van would not be sufficient for the mail he receives on that route. An LLV is more efficient for what he has to do on a daily basis on route 26."

Regarding claim 3, the record reflects that in his response to the EEO Counselor's Report, the Manager stated that he gave Complainant a PDI due to an express mail failure. Specifically, the Manager stated that Complainant did not follow the proper procedure in which a customer refused to accept the package, Complainant deleted the delivered scan after 12:00 pm noontime .and then entered an undeliverable address scan. The Manager stated that the undelivered scan caused a failure, because express mail is guaranteed to be delivered before 12:00 pm noontime.

Further, the Manager stated that Complainant should have left the "stop the clock" scan in the scanner and then added the "refused" scan when the customer refused to accept the package. The record reflects that Complainant was not disciplined for failure to follow proper procedures.

Regarding claim 4, the Manager denied threatening Complainant on January 24, 2013 and February 5, 2013. Specifically, the Manager stated "I do not recall making a comment like that. I talked to [Complainant] in the presence of his union steward and I told him he must follow his instructions and that failure to do so could lead to progressive correction action."

Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. 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

July 10, 2014

__________________

Date

2

0120141663

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120141663

6

0120141663