0120093737
03-24-2011
David A. Hughes, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
David A. Hughes,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093737
Hearing No. 451-2008-00111X
Agency No. 4G-780-0230-07
DECISION
On September 9, 2009, Complainant filed an appeal from the Agency's July 31, 2009 notice of final action concerning his equal employment opportunity (EEO) complaint 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. For the following reasons, the Commission AFFIRMS the Agency's notice of final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Customer Service at the Agency's McAllen Post Office in McAllen, Texas. Hearing Transcript, at, 9 - 10. Complainant had worked in the position of Supervisor of Customer Service since November 2005. Id., at, 23. During the relevant time, Complainant was one of three people serving in the position of Supervisor of Customer Service in McAllen. In June 2007, the Postmaster of McAllen issued the same Performance Improvement Plans (PIPs) to Complainant and the other two supervisors in order to improve their performance.1 Report of Investigation (ROI), Affidavit B, at, 1-2; Counselor's Report, at, 50; ROI Exhibit 10, at, 2; ROI Exhibit 11, at, 2.
Thereafter, the two supervisors filed requests to voluntarily return to their carrier crafts at the McAllen Post Office on June 8, 2007, and June 11, 2007, respectively. ROI Exhibit 10, at, 5; ROI Exhibit 11, at, 3. Complainant did not file a request to change crafts at this time. On June 13, 2007, the Postmaster accepted the requests of the two supervisors and one of them was assigned to the San Juan Post Office and the other was assigned to the Mercedes Post Office. ROI Exhibit 10, at, 6; ROI Exhibit 11, at, 3. Shortly after the other two supervisors left, Person X was hired as an Associate Supervisor for District Operations at the McAllen Post Office. Affidavit A, at, 5; ROI Exhibit 14.
On July 5, 2007, the Postmaster issued Complainant a second PIP. ROI Exhibit 6. On July 9, 2007, a Letter of Warning was prepared for Complainant charging unacceptable performance - failure to follow instructions. ROI Exhibit 7. On July 20, 2007, Complainant submitted a request via electronic mail to return to the carrier craft in McAllen. ROI Exhibit 8. The Postmaster received a signed copy of Complainant's request for reassignment on July 26, 2007. ROI Exhibit 8, at, 2; Hearing Transcript, at, 106. On August 3, 2007, the Postmaster accepted Complainant's request for a voluntary return to craft and Complainant was assigned to the Weslaco Post Office effective Saturday August 4, 2007. ROI Exhibit 9.
Complainant filed an EEO complaint dated August 9, 2007, alleging that the Agency discriminated against him on the basis of race (Anglo) when:
1. On July 5, 2007, Complainant was the only employee issued a Performance Improvement Plan (PIP);
2. In July 2007, Complainant was given a Letter of Warning; and
3. In July 2007, Complainant was not allowed to return to the carrier craft position and remain in the same work station in McAllen.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on May 13, 2009. The two witnesses who testified at the hearing were Complainant and the Agency official serving as Postmaster of the McAllen Post Office during the relevant timeframe. The AJ issued a bench decision on May 13, 2009, and then issued an Order Entering Judgment on July 22, 2009. The Agency subsequently issued a notice of final action fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant alleged that the AJ and the Agency attorney were friends and each led the other through the hearing. Complainant stated that before the hearing, the AJ and the Agency attorney discussed other cases that were to be heard at another time. Complainant stated that the AJ also brought up some evidence that was not even discussed prior to it being brought up by the AJ which Complainant claimed led him to believe that the case was discussed by the AJ and the Agency prior to the hearing.
Additionally, Complainant stated that he was not able to get all of his supporting evidence from the Agency. Complainant stated that if the information he requested would have been provided and the information supported the testimony of the Agency, he would have not filed the appeal. Complainant stated the responsible management official lied under oath and her word was taken over his.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
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). She must generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S.Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
After a careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Additionally, we determine there is no evidence that the AJ was biased, failed to consider the appropriate evidence, or engaged in improper ex parte communications with the Agency. Moreover, we find the record was fully developed in this case.
With regard to issue (1), Complainant claims that the Agency discriminated against him when he was issued a PIP in July 2007. The record reveals that the Postmaster issued Complainant and the other two customer service supervisors identical PIPs in June 2007. After receiving PIPs in June 2007, the other two customer service supervisors requested reassignment and were reassigned to positions outside of the McAllen Office. Following the issuance of the June 2007 PIP, Complainant decided to remain in his position as Supervisor of Customer Service. The record shows that after communicating with the Department of Labor Relations, the Postmaster was informed that the PIPs she issued in June 2007 to Complainant and the other two Supervisors of Customer Service were not prepared properly. Hearing Transcript, at, 79. After learning of the deficiencies in the PIPs, the Postmaster reissued a corrected PIP prepared by Labor Relations on July 5, 2007, to Complainant who was the only Customer Services Supervisor working at McAllen at this time. Id., at 79 - 81. With regard to Complainant's contention that Person X should have also received a PIP at that time, we note that the record shows that Person X was hired as an Associate Supervisor for District Operations and not as a Supervisor of Customer Service. Furthermore, the record shows that he had only been working in that position at the earliest since the last week of June 2007. Upon review, we find Complainant failed to show that the Agency's actions with regard to the issuance of the July 5, 2007 PIP were based on discriminatory animus.
With regard to issue (2), the record contains a copy of a Letter of Warning dated July 9, 2007, noting that Complainant was being charged with unacceptable performance for failure to sign off on the hot case clearance log on a daily basis from June 5 - 12, 2007. ROI Exhibit 7. The Letter of Warning in the record is not signed as received by Complainant and has a line drawn through it. The Postmaster testified that she did not issue the July 9, 2007 Letter of Warning because she decided that since she was issuing the new Performance Improvement Plan, she wanted to give Complainant an opportunity to start fresh with no Letter of Warning. Hearing Transcript, at, 89. Complainant failed to show that the Agency actually issued the LOW or that the Agency's actions surrounding the LOW were a pretext for prohibited discrimination.
With regard to issue (3), we find the AJ properly determined that assuming there were six open carrier positions available in McAllen at the time of Complainant's request to change to a carrier position in McAllen, the evidence is undisputed that there was a list of 17 people who were already requesting those positions prior to Complainant's request for reassignment. Hearing Transcript, at, 122 - 124; February 5, 2008 electronic mail message. Complainant failed to show that the Agency's actions surrounding his request for reassignment were based on discriminatory animus. Moreover, Complainant failed to show that he was subjected to a hostile work environment by the Agency based on his race.
CONCLUSION
Accordingly, the Agency's notice of final action finding no discrimination is AFFIRMED.
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
March 24, 2011
__________________
Date
1 The Postmaster is also referred to in the record as the Acting Postmaster and the Officer In Charge.
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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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