0120131237
06-19-2013
Hakeem E. Bey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Hakeem E. Bey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131237
Agency No. 1J-609-0037-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 16, 2013 final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Equipment Operator at an Agency facility in Chicago, Illinois.
On January 3, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of disability (diabetes, hypertension, glaucoma, and right leg), age (over 40), and in reprisal for prior EEO activity when:
1. on September 29, 2011, he did not receive a paycheck for September 10, 2011 through September 30, 2011; and
2. as of January 12, 2012, his health benefits have not been restored since returning to work on September 20, 2011.
The record reflects that Complainant filed a separate EEO formal complaint when on January 28, 2011, Complainant lost his bid assignment and was sent home. Complainant's complaint was later amended when he was issued a removal notice dated February 15, 2011.
The record further reflects that on September 8, 2011, Complainant and the parties entered into a Last Chance Agreement to resolve a matter which Complainant pursued through the EEO complaint process. In the Last Chance Agreement, the parties agreed that Complainant would be reinstated to his former position based on the following conditions: that he shall incur no more than two unscheduled absences and no instances of Absence Without Leave at any time during the two year period from the date of the agreement; and his reinstatement would be without loss of seniority but without backpay. Complainant returned to duty on September 10, 2011.
Complainant claimed that he was not paid for any of the work he performed from September 10, 2011 through September 24, 2011, until December 9, 2011. The record reflects that as a result of a grievance, Complainant was paid a lump sum payment for all work performed from September 10, 2011 through September 24, 2011. The record reflects further that Complainant's health benefits were restored on January 14, 2012.
After the investigation of the complaint, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew his request. Consequently, the Agency issued a final decision on January 16, 2013, pursuant to 29 C.F.R. � 1614.110(b).
On December 31, 2012, the Agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(5), on the alternative grounds of mootness. The Agency also dismissed claims 1 and 2 on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The Agency nevertheless addressed claims 1 - 2 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of disability, age and reprisal discrimination.1 The Agency further found that assuming, for the sake of argument, that Complainant had established a prima facie case of disability, age and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the Agency noted that as a result of being removed from the Agency, Complainant was completely removed from postal rolls. The Agency noted that when Complainant returned to duty, Complainant had to be re-elevated into the program. The Agency acknowledged there was approximately a 3-week delay, but that the payroll system accepted Complainant's time beginning week 2 of Pay Period 21 (October 1-7, 2011), and he was subsequently paid for week 2 of Pay Period 21 on October 14, 2011.
The Acting Supervisor, Information Services (Acting Supervisor) stated that when Complainant returned to duty on September 10, 2011, the only role he had in returning Complainant to work was to make sure Information Services made a badge for Complainant, so he had access to return to duty. The Acting Supervisor stated that it was Complainant's immediate supervisor's responsibility to complete a manual PS Form 1260 to insure Complainant was paid if he was not in the payroll system. Specifically, the Acting Supervisor stated "... at the time the Arbitrator brought [Complainant] back to work, he [Complainant] was totally out of the Postal system as he had been fired. Because a grievance was not open, he was totally out of the Postal system, including pay roll. This would mean his immediate supervisor would not be able to enter his hours into the system and would need to fill out a manual form (PS 1260)."
Further, the Acting Supervisor stated that the arbitrator's decision "was on a Thursday, and [Complainant] was returned to work on Saturday. I believe this was too soon to get him into the system so quickly."
The Supervisor Distribution Operations stated that during the relevant time, she was Complainant's supervisor. The supervisor stated that she did not have a role in entering Complainant's work hours into the postal system because "this is not part of my job."
The Plant Manager stated that during the arbitration, he agreed to allow Complainant "to come back to work, but it is not my job to work out the specifics of such matters." The Plant Manager further stated that when Complainant informed him that he had not been paid from September 10, 2011 through September 30, 2011, he informed Complainant "I would follow up and if necessary get him a voucher. I then spoke to [named Agency official], the Step 2 designee. She advised me the paperwork, returning Complainant to duty, had been submitted to Shared Services. Based on this information, and as [Complainant] did not come back to me about a voucher, I believed the matter was resolved."
Regarding claim 2, the Agency noted that the restoration of Complainant's health benefits was processed by Human Resources Shared Services Center (HRSSC) and was a part of placing an employee back on postal rolls. The Agency further stated that there was no evidence in the record showing that any management official had a discriminatory animus towards Complainant.
The Plant Manager stated that he had no role concerning the restoration of Complainant's health benefits. Specifically, the Plant Manager stated "I recall speaking to [Complainant] about his paycheck, but I do not recall any discussion of his health benefits."
Complainant, on appeal, argues that the Agency erred finding no discrimination. For instance, Complainant argues that there was no explanation why no one completed a voucher to get him paid after he asked three responsible management officials, including Plant Manager, about his pay. Complainant further argues that the "record is completely void as to why his health insurance benefits were not restored. This is why the FAD has to conclude, 'it would appear that the restoration of health benefits was processed by HRSSC and was part of placing an employee back on the postal rolls [emphasis in its original].'" As a remedy, Complainant requests that the Agency's finding of no discrimination be reversed and be awarded $125,000 in compensatory damages plus attorney's fees.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements 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.2
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
June 19, 2013
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
2 Because we affirm the Agency's final decision finding no discrimination concerning claims 1 - 2, we find it unnecessary to address alternative dismissal grounds (i.e. mootness and failure to state a claim).
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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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