0120132047
08-30-2013
Errick R. Ford, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Errick R. Ford,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120132047
Hearing No. 450-2012-00210X
Agency No. 4G-760-0119-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 4, 2013 final action 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 Customer Service Delivery Supervisor permanently assigned at the Agency's Poly Station in Fort Worth, Texas.
On October 18, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), color (black) and in reprisal for prior EEO activity when:
1. since August 2011, he has been passed over for higher level opportunities/training; and
2. on or about December 10, 2011, he was assigned to another station to perform office/3999 street observations.1
Complainant is currently assigned to the Agency's Southeast Branch in Fort Worth where he has served as the Acting Station Manager since February 2012. From November 2010 to December 2011, Complainant was the morning supervisor at the North Richland Hills Station. In December 2011, Complainant was assigned to the Wautaga Station to conduct 3999 street observations and 1838 office observations. Complainant was at the Wautaga Station for two and one-half weeks. From December 2010 to February 2012, Complainant was assigned to the Jack D. Watson North Carrier Annex (North Carrier Annex).
Following a hearing held on February 13, 2012, the AJ issued a decision on March 28, 2013, finding no discrimination. The AJ found that in regard to claim 1, Complainant did not establish a prima facie case of race, color and sex discrimination. Specifically, the AJ found that Complainant did not show he was treated differently than similarly situated individuals outside of his protected groups. However, the AJ found that in regard to claim 2, Complainant established a prima facie case of reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
On April 4, 2013, the Agency fully implemented the AJ's decision in its final action.
Regarding claim 1, the AJ noted that during his testimony, the Postmaster stated that Complainant was not considered for higher level opportunities because "the best way to describe that is: past history with [Complainant] has been, we don't have a whole lot of faith in his administrative work, his written work, his attention to detail. Stepping into a managerial role requires a lot of administrative work, a lot of planning. He was never considered because he just didn't demonstrate that he . . . had the skill set that we needed to run a station."
The Postmaster stated that when he learned that the Station Manager was going to be absent from the North Richland Hills for two weeks, he decided to assign a named employee in charge of all the administrative work. Specifically, the Postmaster stated "this was one of those situations where we were literally so short of EAS people - - thirty percent of my EAS [Electronic Address Sequencing] were vacant. They weren't filling jobs at that time. And, we were struggling to find somebody that could run a Level 22 unit. And during a conversation that occurred in my office, it came about that, okay, [named employee (E1)'s] been out there for 18 months. He's been doing all these administrative reports during the day. We put [E1] in charge of all the administrative stuff. . . . So [E1] was administratively left in charge those two weeks."
The Postmaster stated that he did not put Complainant in charge during the Station Manager's absence because "we didn't have the confidence that [Complainant] could handle those responsibilities." Specifically, the Postmaster stated that because of Complainant's past deficiencies "in performance as far as not doing the administrative responsibilities that he was required to do at Poly Station and at the unit in North Richland Hills Station. [E1] was doing the reports. We let [E1] continue to do the reports." The Postmaster stated that Complainant's race, sex, color and prior protected activity were not factors in his determination not to put him in charge of the administrative work during the Station Manager's absence.
The Customer Services Operations Manager (CSOM) stated that he did not appoint Complainant to any higher level opportunities during the November 2010-March 2011 time period because "one, I didn't know [Complainant] was interested. Two, a previous conversation that I had with [Complainant] when he was at Poly, he was requesting to be removed from Poly for various reasons. He just couldn't deal with the manager. He said he couldn't handle the way that the manager was dealing with him, and basically he just didn't want to be there."
CSOM further stated that during the September 2011-December 2011 time period, he had a discussion with Complainant about higher level opportunities. Specifically, CSOM stated he had previously supervised Complainant "at the Jack D. Annex. I asked him why he didn't call or ask me, to come talk to me about wanting a detail, and you know, we discussed the time that he requested being removed from Poly at that time also, and that's basically it." CSOM stated that on one occasion he visited the North Richland Hills facility and had a conversation with Complainant. CSOM stated that Complainant "said he wanted to talk to me about opportunity at that time, but basically I just said, 'show me what you can do here,' you know."
The Acting Customer Services Operations Manager (Acting CSOM) stated that after receiving an email from Complainant requesting a detail when one became available, the Acting CSOM had a discussion with Complainant. Specifically, the Acting CSOM stated that what he and Complainant "discussed was some of the infractions that I had witnesses, you know, some of the compliance issues. And I told him that I needed for him to improve in that because. . . in order for him to get the responsibility of a manager. . . he will have to demonstrate that he could . . . run the functions to the operation because, as a manager, you're in charge of the whole operation, not just one. So I told [Complainant] that 'until you demonstrate you can run function 2B, then I will give you an opportunity to become a manager."
Regarding claim 2, the AJ found that Postmaster, Customer Services Operations Manager (CSOM) and the Manager of Customer Service of the North Carrier Annex credibly testified that Complainant's reassignment to the North Carrier Annex, which was a Level 24 Station which reported directly to the Fort Worth Annex, was a developmental higher level assignment. The AJ further found that the fact that Complainant, a qualified route examiner, was assigned to perform 3999 street observations does not change the fact that this was a higher level opportunity. The AJ found that while the Postmaster admitted that he should have communicated better with Complainant about the reasons for the reassignment, it did not establish that the move was a pretext to retaliate.
During his testimony, the Postmaster stated that he was the deciding official to detail Complainant to the North Carrier Annex. Specifically, the Postmaster stated when Complainant "made us aware that he felt he was being discriminated against and missing upward mobility opportunities, we wanted to give him a fresh start." The Postmaster stated at the time, the North Carrier Annex was three supervisors short and needed additional assistance. The Postmaster stated that he told the Manager of Customer Service (Manager) that Complainant would be detailed to the North Carrier Annex and "let him work in one of your vacant slots. But I want you to teach, train, coach, develop, evaluate, and let's see what we have. And that's how [Complainant] ended up at the North Carrier Annex. It was a business decision on my part to give [Complainant] a brand new, fresh start and just to evaluate, see what we have."
Further, the Postmaster stated that his decision to send Complainant to the North Carrier Annex was not intended as a punishment. Specifically, the Postmaster stated the Complainant's assignment was "in no way, was it meant to be punitive, discriminatory, or anything. I'm trying to do the right thing. He's made me aware. Okay, let's see what we got. And also keep in mind that 30 percent of my staff is vacant. I'm still looking for good, developed people that can take over. So I wanted someone else to evaluate and tell me what we have."
The Postmaster stated that Complainant "formally made us aware that he feels like he's being passed over. At the time [Station Manager] had given corrective action, and I just said, okay, let's start all over again. This is why I was short-handed at North Carrier Annex, and I said, 'let's put him at North Carrier Annex. Let's see what he can do.' This would be his opportunity to be in the largest city delivery unit that we have, really, in the entire District. We're short-handed. Let's - - [Complainant] thinks he's ready for upward mobility...and that was the plan, to let him work in the largest city delivery unit we had. That's where he would get the absolute most exposure, the most training, and just see if we were going to make a difference or not. That was my though processes at the time."
The Postmaster testified that he later learned that Complainant was doing street observations. The Postmaster stated that at that time, he did not know how [Manager] was assigning Complainant and "I learned later that he was unhappy that he was being sent to the street. [Manager's] instructions were to develop, coach, train, evaluate. And how he did that was up to him."
The Manager testified that he was instructed by the Postmaster to groom Complainant and "help him wherever he needed help in. No particular thing other than upper mobility, is what I was told." The Manager stated that during the relevant period, he sent Complainant to the Watauga facility "because, basically, in a supervisor's position that we were at the Annex, I cover - - or that the supervisor covers Watauga on a relief rotating off day schedule basis."
The Manager testified that he also assigned Complainant to do street observations because he "was an experienced route examiner. From being through Ops, he's done route examinations for the district, and I've known [Complainant] from doing those, so when it came that we needed to have route inspections done and we had [Complainant] available, that's why I used [Complainant] to do those." The Manager stated that there was nothing demeaning about doing route inspections. Specifically, the Manager stated "a 3999 is, all you do is count the carrier in the morning, you count his mail, and then you go with him on the street to do observations. There's nothing demeaning."
Complainant, on appeal, argues that the AJ erred finding no discrimination. For instance, Complainant argues that the AJ "engaged in an overly narrow inquiry into similarly situated employees. [Postmaster], [CSOM], and/or [Acting CSOM] selected ALL opportunities for Development. Thus, they are all the Complaints Supervisor for purposes of similarly situated employees. The complainant asks the Court to consider all relevant aspects of his complaint and reverse the finding that the complainant did not establish a prima facie case of discrimination in Claim 1 [emphasis in its original]."
With respect to claim 2, Complainant argues that the Postmaster and Manager were not credible during their testimony concerning his assignment. Complainant argues that the AJ erred in determining his reassignment "was a 'high level developmental assignment.' The fact that he was notified a day prior to his reassignment, with no conversation, discussion or other dialogue, and was the only supervisory in the city working 6 days a week performing only carrier observations during December. It is uncontroverted that this activity is prohibited by Postal Regulations during December."
The instant appeal followed.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
August 30, 2013
__________________
Date
1 The record reflects that claim 2 and the basis of reprisal were later amended to the instant formal complaint.
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Office of Federal Operations
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