0120143186
02-06-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120143186
Agency No. 4G-720-0020-14
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 21, 2014 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 Rural Carrier Associate at the Agency's Russellville North Station in Russellville, Arkansas.
On December 5, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of age (over 40) and in reprisal for prior EEO activity when:
1. on December 12, 2013, he was constructively discharged after he was stuck in an ice storm in the forest and when he called his supervisor to explain, she told him either to report to work or to turn in his badge; and
2. he was issued a Notice of Removal with an effective date of March 8, 2014.1
After the investigation of the claims, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On August 21, 2014, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of age and reprisal discrimination. The Agency further found that assuming Complainant established a prima facie case of age and reprisal discrimination, Agency management nevertheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext for discrimination.
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. During the relevant period, the Acting Station Manager (Manager) was Complainant's manager. The Manager stated that in regard to claim 1, she did not discharge Complainant. Instead, she informed Complainant that management needed him to report to work. Specifically, the Manager stated that Complainant called in on December 12, 2013 to say his vehicle broke down and that was stranded because of the snow. The Manager stated that she offered Complainant the number for a tow truck to assist him. The Manager stated that she also told Complainant that he needed to come to work and he should rent a vehicle if necessary in order to deliver the mail. The Manager stated that Complainant "became agitated and said there is nothing that he could do. I suggested that he call me back later to let me know what time he would be able to report to work. He could make a late start and deliver a swing if necessary. I had no one to call in and we needed him to work. He said 'I'm telling you that I will not be in.' I said '[Complainant] report to work or turn in your badge.' I did not discharge him. I gave him an option of trying to find another vehicle to drive and come to work to deliver the mail or turn in his badge. I never thought he would shout at me and say 'well, I guess I will just turn in my badge.' My main concern was the delivery of the mail. Carriers break down all the time and when they do they take the necessary steps to do their job such as borrow a vehicle, rent a vehicle or some have a back up vehicle that they use."
Further, the Manager stated that when she told Complainant turn in his badge, "I meant that if [Complainant] didn't report to work then he could face possible discipline such as a suspension for failure to report. He would have had union representation and an investigative interview would have been conducted with possible discipline to follow. Termination was the last thing on my mind...I wanted him to report to work. I tried to contact him on several occasions by phone and by certified mail to request his presence at an investigative interview. I feel [Complainant] abandoned his post and never attempted to return to work."
With respect to Complainant's allegation that he was constructively discharged, the Manager denied it. The Manager stated that she called Complainant and told "him that I had not heard from him and needed to know what he was going to do. He had not turned in his badge and I had paperwork for him to sign. I did not say [that I was] ready for him to resign. I had leave slips that I needed him to complete and sign due to his absence."
Regarding claim 2, the Manager stated that she never spoke to Complainant or had contact with him after the December 12, 2013 incident. The Manager further stated that she tried to contact Complainant on numerous occasions. However, Complainant never responded and never reported to work. The Manager also stated that she told Complainant's union representative that Complainant needed to report to work as scheduled. The Manager stated that the EEO Specialist contacted her concerning Complainant's case, and "I explained the circumstances and she also said that she was going to just contact [Complainant] and advise him to return to work. [Complainant] was removed from the USPS for repeated AWOL and failure to report to work or his investigative interview. I continued to place [Complainant] on the schedule until his removal was scheduled. [Complainant] failed to report to work as scheduled nine days in a row. Had [Complainant] reported to work as scheduled or contacted any member of management he would have been told to report to work."
Moreover, the Manager stated that Complainant "had many opportunities to report for duty including the Notice to Report for Investigative Interview mailed out on 1/13/2014. He never responded and was released from employment because of his failure to report."
The Postmaster was the concurring official concerning Complainant's removal for failure to report for duty and his absence without leave. The Postmaster stated that Complainant "failed to report to work on several occasions. His union representative and the District EEO Coordinator told him to just report to work. However, he never reported to work. He also failed to report to Investigative Interview."
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above.
On appeal, Complainant argues that the Agency erred finding no discrimination because the Manager and Postmaster made false statements. For instance, Complainant stated that when the EEO Specialist interviewed the Manager, she "stated she had been trying to contact the counselee by the telephone number on file but counselee has not returned her calls. My phone records indicate I did not received any phone calls from her. False statement on day one."
Further, Complainant argues that the Manager arranged for an investigative interview because the EEO Specialist had contacted her and "investigation took place and wasn't fair because I didn't have a opportunity to respond to my supervisor or Post master answers. I sent info to the investigator [named investigator] about false statements made by [Manager]. At this time nothing has been done."
However, despite these assertions, Complainant has not provided evidence in support of his claims. Thus, he has not met his burden to prove, by a preponderance of the evidence, that these proffered reasons by management for its actions were a pretext for unlawful discrimination.
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
February 6, 2015
__________________
Date
1 The record reflects that claim 2 was 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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