0120131115
06-20-2013
Francisco Rivota, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Francisco Rivota,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131115
Hearing No. 440-2011-00058X
Agency No. 4J-606-0053-10
DECISION
Complainant filed an appeal from the Agency's December 15, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Lincolnwood/Edgebrook Post Office facility in Lincolnwood, Illinois.
On April 24, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), color (White), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when on December 4, 2009, he was placed off the clock without pay.
The pertinent record shows that on December 4, 2009, the Manager issued Complainant an Emergency Placement, which put him in an off-duty, non-pay status. Complainant disregarded, without good cause, the Supervisor's instructions to leave. The Manager averred that the supervisor was fearful to report back to work.
The disciplinary action was premised on an incident that occurred on December 3, 2009, when Complainant forcefully re-entered the premises after clocking out for the day. The Supervisor, Customer Services (also Hispanic), reported that, as she was going to lock the doors at 6:25 p.m, Complainant was trying to get past her. At the time, the supervisor was holding her cell phone and talking with the Manager, who was on the line at the time and could hear the incident. The supervisor told Complainant "You're off the clock, stay out of the building." She stood in front of the door, blocking his entry, but he went around her and went to the supervisor's office to make copies, without permission.
The record includes the memorandum from the Manager dated December 4, 2009, placing Complainant in an off-duty status, pending an investigation. The memorandum references the reasons as "Unacceptable conduct and creating a hostile work environment." The Manager believed that Complainant had shared the Manager's private home address with another employee and that Complainant forcefully tried to re-enter the premises on December 3, 2009, after being told by two supervisors to leave the premises. The record shows that other employees were also told to leave the building if they were not on the clock. None of the other employees had tried to force their way into the building.
The record also shows that Complainant filed an EEO complaint in 2006 and filed a second complaint in February of 2009. He also testified in a co-worker's case in July of 2009.
The supervisor testified that she was not aware of Complainant's prior activity and Manager averred that he did not recall any prior EEO activity by Complainant.
As further background, Complainant's complaint originally alleged three claims. The Agency dismissed two of the claims and the dismissal of the two claims was affirmed in Francisco Rivota v. United States Postal Service, EEOC Appeal No. 0120102786 (September 21, 2010). The Commission remanded the third allegation to the Agency for further processing and it is the subject of this appeal.
The record also includes a Dispute Resolution Team (DRT) decision dated January 29, 2010. That decision returned Complainant to work on January 13, 2010, with back pay.
At the conclusion of the investigation of the remanded claim, 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 requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to follow the orders of the Administrative Judge and failed to prosecute his case. The AJ found that Complainant failed to timely engage in discovery or file his prehearing submissions. The AJ's order also stated that his "review of the Report of Investigation and the submissions by the Agency established that no dispute of material fact or one of credibility exists in the case." The AJ dismissed the hearing request and remanded the matter to the agency to take final action.
After the AJ remanded the complaint to the Agency, the Agency initially issued a procedural decision on June 7, 2011. The Agency withdrew the decision and issued the subject decision on the merits 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 did not show that any of the comparators were similarly situated to Complainant because none of the others physically evaded a supervisor. None of the comparators had a recent history of other incidents involving insubordinate attempts to enter a restriction area.
Further, the Agency reasoned that there was no discrimination because others not of Complainant's national origin, race, or prior EEO history were placed off the clock for threatening two supervisors and for her own safety.
Because management was unaware of his prior EEO activity, the Agency found that Complainant did not establish his prima facie case of retaliation.
Next, the Agency reasoned, that assuming that Complainant established his prima facie case, the Agency articulated non-discriminatory reasons. The Manager placed Complainant on Emergency Placement because he forced his way into the building after-hours. The Agency reasoned that its policies permit the Agency to immediately place an employee on an off-duty status in cases where the employee failed to "observe safety rules and regulations" or where the employee "may be injurious to self or others." National Agreement between the National Association of Letter Carriers (NALC) and the Agency. Employees are expected to carry out the instructions of the supervisor.
The Agency found that Complainant failed to present any plausible evidence that would have demonstrated that management's reasons for its actions were factually baseless or not is actual motivation. The Agency found that Complainant did not show that the explanation of the agency for its action was simply a pretext for discrimination.
This appeal followed.
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").
On appeal, Complainant states that he is appealing the decision by the Agency "because it is wrong and unjust," without elaboration. The Agency states that its decision is supported by the record.
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).
Similarly, Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to an adverse action; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
We find that Complainant failed to offer sufficient evidence to establish the prima facie elements of his claim that the Agency subjected him to disparate treatment or retaliation. The record does not show that Complainant was similarly situated to those to whom he compared himself; and the record does not show that management was aware of Complainant's prior EEO activity at the time of the issuance of the emergency placement.
Moreover, the prima facie inquiry may be dispensed with, in this case, since the Agency 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). The Agency stated that Complainant was put on emergency placement after he tried to forcefully enter the building after hours, disregarded an order, and because he was viewed as a threat to the supervisor and manager. At the time of issuance, management believed that Complainant was stalking the manager and had made physical contact with a supervisor.
In addition, the Commission finds that the Agency offered record support for its articulated legitimate, nondiscriminatory reasons for the emergency placement. Agency witnesses, including the decision makers, averred that the emergency placement was based on the perception that Complainant engaged in inappropriate and threatening conduct that warranted off-duty placement. The named comparator co-workers had not engaged in similar conduct; and the co-workers did not have the history of prior offenses. Further, the record shows that others outside of Complainant's protected group had been placed in an off-duty, non-pay status for similar conduct.
Since the Agency articulated legitimate nondiscriminatory reasons for the placement off-duty, to ultimately prevail, Complainant would have to 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); Tx Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Complainant always bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc.Sec'y Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty Affairs v. Burdine, 450 U.S. at 256.
In this case, Complainant has not shown that the reasons for the emergency placement were a pretext for the alleged discrimination or retaliation.
We find that the preponderance of the record supports the Final Decision.
Accordingly, we AFFIRM the Final Agency 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
June 20, 2013
__________________
Date
2
01-20131115
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131115