0120122362
10-15-2012
Francis G. Sheeran, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Francis G. Sheeran,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120122362
Hearing Nos. 443-2011-00036X; 443-2011-00145X
Agency Nos. 4J-600-0117-08; 4J-600-0095-10; 4J-600-0013-11
DECISION
Complainant filed an appeal from the Agency's February 16, 2012, final consolidated decision concerning his above-referenced equal employment opportunity (EEO) complaints. He alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services at the Agency's Maywood Branch facility in Westchester, Illinois.
On October 3, 2008, June 29, 2010, and January 6, 2011, Complainant filed three EEO complaints alleging that the Agency subjected him to harassment and discrimination on the bases of his race (Caucasian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. The Agency consolidated the complaints for processing. The complaint numbers and allegations are as follows:
Agency Case Number 4J-600-0117-08
1. On May 18, 2008, management issued Complainant a Notice of Proposed Adverse Action - Reduction in Grade and Pay.
Agency Case Number 4J-600-0095-10
2. On May 1, 2010, Management issued him a Letter of Warning in Lieu of a Seven-Day Suspension;
3. From May 3, 2010 to May 15, 2010, management charged Complainant with Absence Without Leave;
4. On May 12, 2010, management denied Complainant's access to the computer systems referenced as TACS and ERMS;
Agency Case Number 4J-600-0113-11
5. Management charged Complainant with LWOP for two weeks; and
6. Management excluded Complainant from Pay for Performance and management had not granted his leave as of March 18, 2011.
As relief, Complainant seeks compensatory damages and restoration of his leave.
The Commission notes that the issues claimed in Agency Case Numbers 4J-600-0117-08 and 4J-600-0095-10 were previously addressed by this Commission in Francis G. Sheeran v. United States Postal Service, EEOC Appeal 0120090807 (July 9, 2010). The Commission reversed the Agency's dismissal of his claim pertinent to the May 18, 2008 issuance of the Notice of Proposed Adverse Action and remanded that mater for investigation. The Commission affirmed the dismissal of Complainant's claims that he was being marked absent without leave, and denied sick leave. In addition, the Commission found that Complainant's allegations alleging harassment were identical to the allegations that Complainant raised in another complaint (Agency No. 4J-600-0077-08). The Commission dismissed the harassment claim.
The record shows Complainant is Caucasian. He engaged in prior EEO activity, which was initiated on April 24, 2008. Complainant was charged with a failure to follow instructions for an incident that occurred on December 17, 2007. The Manager, Post Office Operations at that time was aware of his prior EEO activity because he had been contacted by an investigator, but he did not believe that he had been named by Complainant. He stated that he would not have been personally involved in the disciplinary action taken against Complainant. The two other named officials (Postmaster and the Officer-in Charge) testified that they were not aware of Complainant's prior EEO activity. The new Postmaster who assumed the position of Postmaster at the Maywood Post Office in February of 2008 explained that the action was not executed because he had not been provided any documentation to fully address the charges against Complainant. The new Postmaster made the decision to reduce the action to an official discussion. He further testified that he did not consider a reduction in grade appropriate under the circumstances, without supporting documentation.
The record shows that on March 23, 2010, Complained filed Agency Case Number 4J-600-0077, which is the basis of his alleging reprisal for Agency Case Number 4J-600-0095-10. The record shows that although the Postmaster was contacted by the EEO Counselor, Complainant withdrew this complaint [4J-600-0077-10] on April 21, 2010. The record does not show that the Postmaster was aware that the complaint had been filed.
With regard to Agency Case Number 4J-600-0095-10, the Postmaster testified that he issued Complainant the Proposed Letter of Warning in Lieu of the Time-Off Suspension on April 30, 2010. The Postmaster reasoned that his issuance of a Letter of Warning was appropriate because Complainant had received a prior Letter of Warning.
The Postmaster averred that Complainant was then absent without leave during the period of May 3, 2010 through May 15, 2010 and he denied Complainant's request for annual leave for the period in question. Complainant disputes that his request was denied. The Postmaster states that he did not grant the request and the Postmaster believed that the signature (on the document approving the request) was either copied or forged on the document. The Postmaster testified that he denied the requests for additional leave because Complainant had just been off for six weeks and then asked for two weeks of vacation. The Postmaster stated that he denied the leave because he believed that Complainant's services were needed.
With regard to the decision to revoke Complainant's access to the TACS and ERMS systems, the Postmaster testified that an investigation was being conducted by the Office of the Inspector General (OIG) into TACS irregularities and all of the supervisors, including Complainant, were being investigated. He stated that Complainant had not been interviewed because he had not been at work. The Postmaster denied that Complainant's race or prior EEO activity were factors in his decision to revoke Complainant's access to the computer systems. The record does not show that others outside of Complainant's group were treated more favorably.
With regard to Agency Case Number 4J-600-0013-11, the record shows that Complainant engaged in EEO activity. Complainant averred that by then, the Postmaster was aware of his prior activity since Complainant named the Postmaster in the prior EEO complaints. However, the record shows that Complainant withdrew the complaint 4J-600-0013-11 and there is no evidence that the Postmaster was aware of his filing.
With regard to the claim that Complainant was charged Leave Without Pay (LWOP), the record shows that Complainant noticed, on his November 8, 2010 pay slip, that he was charged LWOP for two weeks. The Manager, Customer Services testified that he had no recollection of a request from Complainant for leave and Complainant was charged LWOP for two weeks. Complainant also accused the Manager of carrying out management's instructions to deny him leave. The record shows that, at the time this occurred, the named official (the Manager, Customer Services) was on a detail to another an assignment. The Manager, Customer Services, denied Complainant's claim that the Manager of Post Office Operations instructed the Manager of Customer Services to change Complainant's leave from annual leave to leave without pay. The Manager averred that he did not input any type of leave for Complainant during this period and that he was not working in the unit at the time.
With regard to the claim that Complainant was excluded from Pay for Performance, the record testimony shows that the participation was based on the perceived individual contribution to the performance of the office of those who were selected. The determining indicators were reduction in overtime and work hours and an improvement in the scanning percentages. The Postmaster also testified that Complainant did not receive an evaluation because he was not available. He added that two other supervisor were excluded who had not been available at the time of evaluation. In addition, the Manager, Customer Services, stated that he was not involved in the PFP process and Complainant was not assigned to him for evaluation review.
Turning to Complainant's claim that, as of March 18, 2011, the Agency had not granted Complainant's leave request, the Postmaster averred that there are guidelines for requesting and granting leave and that Complainant failed to follow the rules. He averred that Complainant's CA-2 was not submitted to his immediate supervisor as required by the Employee and Labor Relations Manual (ELM). The CA-2 was a Department of Labor (DOL) Office of Workers' Compensation Programs (OWCP) from for compensation for an occupational disease. He averred that the DOL/OWCP, not the Postal Service, makes the determination to grant the worker's compensation request. Also, the Postmaster averred that during the period in question, Complainant was not at work and had not been communicating with the local office.
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 but subsequently withdrew his request. He withdrew his request because the Agency and a Bankruptcy Trustee, who had intervened, had entered a settlement agreement. The record shows that, on December 11, 2010, Complainant filed a bankruptcy petition number 10-54828 before the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division. Complainant filed for Voluntary Chapter 7 Bankruptcy, which was discharged on March 14, 2011. Complainant admitted that he failed to list the EEO complaints on his schedule of assets for the bankruptcy. A Trustee filed a motion to intervene in the EEO action. The AJ granted the Trustee's request, after the Trustee and the Agency entered into a settlement agreement. The AJ then dismissed the hearing request and remanded the matter to the Agency for the issuance of a decision.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant failed to show that he was treated differently than similarly situated employees who were not members of his protected group. The Agency also noted that the record shows that other supervisors were excluded from the PFP program because they were both pending removal from the Postal Service. Other comparators were in different position and had not been charged with the same conduct as Complainant.
On appeal, Complainant asserts that the Postal Service failed to provide him documents in response to his discovery requests. In response, the Agency requests that its decision be affirmed. The Agency contends that Complainant never filed a Motion to Compel when the matter was pending before the Administrative Judge.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Here, Complainant seeks monetary relief for pecuniary losses. Monetary relief is not a remedy which the Commission can provide to Complainant, because all of the monetary claims are now properly owned by the bankruptcy estate, not Complainant. As noted above, and as stated by the AJ in her dismissal of the hearing request, any legal claims which Complainant had prior to the discharge of the bankruptcy no longer belong to Complainant, but to the estate. Complainant's commencement of the voluntary Chapter 7 bankruptcy action created an estate which is comprised of all legal or equitable interest of the debtor, in this case Complainant, including all causes of action the debtor has pending or that could have been brought. Consequently, the Trustee became the real party in interest vested with the authority to pursue the legal action for all claims, except for declaratory or injunctive relief for which Complainant remains the party in interest.
Title VII at Section 717(a) requires that all employment actions be made free from any discrimination, including race discrimination and reprisal. In a reprisal claim, a complainant may establish a prima facie case by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In a race discrimination claim, Complainant must provide sufficient evidence to raise an inference of discrimination.
There is no evidence that would support a finding that Complainant was subjected to disparate treatment or conduct that was based on Complainant's protected status.
Moreover, a review of the consolidated record reveals that Complainant's prior EEO activity was not against the individuals named in this action and the named officials state that they were not influenced by Complainant's prior EEO activity. We find that Complainant failed to provide evidence sufficient to establish a prima facie case of reprisal because he did not show that the decision makers were aware of his prior EEO activity and did not offer evidence of a nexus between his prior activity and the issues raised herein.
Further, we find that the Agency articulated legitimate non-discriminatory reasons for each of its actions and the preponderance of the evidence does not show pretext.
Because we find that Complainant failed to establish the elements of his prima facie case, however, we need not address the Agency's articulated reasons. The record does not show that Complainant was treated differently than similarly situated employees not in his protected class. For the reasons stated herein, the Commission finds that Complainant failed to show that he was entitled to judgment as a matter of law.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
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 tends 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
October 15, 2012
__________________
Date
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0120122362
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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