0120091240
06-23-2009
Francisco Rivota, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Francisco Rivota,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091240
Agency No. 4J606012206
Hearing No. 440-2007-00075X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 14, 2008 final decision 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.
Complainant alleged that the agency discriminated against him on the
bases of national origin (Hispanic) and reprisal for prior protected
EEO activity under Title VII when: 1) on May 17, 2006, his manager
screamed at him and told his supervisor to fire him; 2) on May 18, 2006,
he was issued a Letter of Warning for Failure to Follow Instructions;
3) on June 6, 2006, his supervisor kicked him; 4) on June 14, 2006,
he was issued a 7-Day Suspension for Failure to Follow Instructions;
5) on July 7, 2006, he was issued a 14-Day No Time-Off Suspension for
Failure to Follow Instructions; and 6) on/about May 5, 2006, his request
for sick leave was denied and he was charged AWOL.
The record reflects that an EEO investigator processed complainant's
claims, and a copy of the investigative file was transmitted to
complainant on November 9, 2006. Following receipt of that report,
complainant requested a hearing before an Administrative Judge (AJ).
On April 3, 2008, the AJ dismissed complainant's case as untimely raising
issues not raised in the complaint process or by his formal complaint.
The AJ thus remanded the complaint to the agency for final action
determination. On April 25, 2008, the agency issued its final decision
adopting the AJ's dismissal of the complaint. Complainant subsequently
appealed the agency decision to the Commission on May 13, 2008, and via
decision issued November 7, 2008, the Commission remanded the initial
six claims to the agency for issuance of a final decision on the merits
of complainant's claims. Therefore, the agency issued a final decision
in compliance with the Commission's November 7, 2008 Order.
In its final decision, the agency found no discrimination. The agency
determined that management had cumulatively recited legitimate,
nondiscriminatory reasons for its actions. Specifically, relative to
claim 1, the Manager of Customer Service Operations (MCS), stated that on
May 17, 2006, complainant was out in the parking lot with another employee
who had been placed off the clock. She contended that complainant was
about 20 to 30 feet away with his back to her; therefore, she called out
to him in a manner that he could hear her, instructing him to return
to the facility. The MCS averred that the complainant did not have
permission to be on union business as he had not requested union time.
She noted; however, that she was not aware of complainant's prior EEO
involvement at the time; she only became aware during the REDRESS session
relating to the present claims. The Manager of Customer Service, Chicago
Edgebrook Carrier Annex (MCSE), stated that on the date in question,
the MCS did not yell at complainant; she only instructed him to return to
the building. The MCSE stated that the MCS did inform complainant that
he had failed to follow her instructions; however, she absolutely did not
tell him to fire complainant. He averred that no discipline was issued
to complainant as a result of the incident of May 17, 2006. The MCSE
indicated that he was aware of complainant's previous EEO involvement;
however, he was unable to fathom how his previous EEO involvement was
a factor in the events.
In response to claim 2, the Acting Supervisor of Customer Services,
Edgebrook Carrier Annex (ASCE), testified that he was one of complainant's
direct supervisors and that he was responsible for issuing the Letter of
Warning dated May 18, 2006. He stated that he issued the LOW after the
MCSE walked the floor and discovered a number of City Carriers casing
their DPS mail. The ASCE indicated that the MCSE gave instructions to
the supervisors to issue discipline to those employees caught violating
the rules. He asserted that complainant was one of the employees caught,
as he violated the rules on a daily basis. He further asserted that
Black employees were also issued discipline for similar infractions, as
were Asian employees, and a Caucasian employee. The ASCE noted that he
was aware of complainant's prior EEO involvement, as he had to provide
coverage for complainant's route when he was a representative or witness
at another employee's EEO hearing. He stated that complainant's prior
EEO involvement was not a factor in the discipline issued.
Relative to claims 3 and 4, the ASCE maintained that, on June 6, 2006,
he was sitting at his desk with the vehicle keys in a tub next to him
when complainant came up to the desk wanting keys to a vehicle. The ASCE
asserted that, since he typically ran short of vehicles, he assigned
the vehicle keys. He emphasized that complainant was on an assignment
that day and was not entitled to a vehicle. The ASCE contended that,
as complainant tried to reach into the tub to get keys for a particular
vehicle, he used his foot to pull the tub closer to him and, at that
point, complainant alleged that he was kicked. He denied that he kicked
complainant. The ASCE asserted that he then called the Postal Inspection
Service and an Inspector conducted an inquiry into complainant's claims.
He stated that the Inspector concluded that complainant's statement was
not consistent with what took place; therefore, no action was taken.
The MCS stated that she spoke with the Postal Inspector subsequent to
his investigation and was informed that he found no evidence to indicate
that an assault occurred; as a matter of fact, he was unable to make
"heads or tails" of complainant's allegations. The MCS further stated
that she requested that the Workplace Environment Specialist complete a
workplace climate survey. She stated that the Specialist interviewed
complainant and a number of other employees, but was unable to find
evidence in support of complainant's claim.
Concerning to the 7-Day Suspension dated June 8, 2006, the ASCE asserted
that the discipline was issued due to complainant's actions occurring on
June 6, 2006, when he failed to follow his instructions. Specifically,
he maintained that complainant wanted to call the Union but was told
that he could not until he got the mail up. He stated that complainant
then indicated that he needed to go to the restroom. The ASCE declared
that, instead, complainant used his cell phone to call the Union office,
in violation of the instructions given him.
In response to the matter brought forth in claim 5, the ASCE stated
that he issued the 14-Day Suspension to complainant for failure to
follow instructions. He indicated that, as best as he could recall,
complainant worked unauthorized overtime on his principal assignment
during the week in question, and he went into a penalty overtime status
by the 5th day. He maintained that the discipline was issued for
unauthorized overtime/failure to follow instructions.
With respect to the matter brought forth in claim 6, the MCSE stated that,
on May 5, 2006, complainant left work on sick leave and was advised to
provide supporting documentation of his absence. He stated that, upon
his return to duty, complainant apparently submitted the documentation
to another supervisor who failed to acquire a copy of the original PS
Form 3971 already signed by him. He indicated that complainant was,
thus, improperly charged AWOL as a result. The MCSE indicated that the
error involving complainant was corrected, and he was substantially paid
for the time for which he was previously charged AWOL.
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 EEOC Management
Directive 110, 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").
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). He
must generally establish a prima facie case by demonstrating that
he 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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department 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 Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Complainant submits no statement on appeal. Complainant has not
produced evidence to show that the agency's explanations are a pretext
for discrimination.
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 decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
June 23, 2009
__________________
Date
2
0120091240
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091240