Harlan P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

2019001653 (E.E.O.C. Sep. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2019001653 Agency No. 4B-060-0051-18 DECISION On November 29, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 31, 2018 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. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s New Haven-Kirby Station in New Haven, Connecticut. On May 5, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), color (black), sex (male)2 and in reprisal for prior EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The record reflects that bases of race, sex and color were later amended to the instant formal complaint. 2019001653 2 1. on January 18, 2018, he was issued a Notice of Suspension (No Time Off) for 14 Days; 2. on February 17, 2018, he was issued a 14-Day No Time Off Suspension; and 3. on March 7, 2018, he was put on Emergency Placement in an Off-Duty Status, and subsequently on April 12, 2018, he was issued a Notice of Removal. After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on December 18, 2018, pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency initially dismissed claim 1 on the grounds of mootness, pursuant to 29 C.F.R. § 1614.107(a)(5). The Agency reasoned that following a union grievance, the January 18, 2018 Notice of Suspension was rescinded and removed from Complainant’s official personnel records. However, the Agency nonetheless proceeded to address claims 1 - 3 on the merits, finding no discrimination. 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 2019001653 3 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). It is undisputed that Complainant had engaged in prior EEO complaint activity and that management was aware of it. However, Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, Complainant asserted that on January 18, 2018, he was issued a Notice of Suspension (No Time Off) for 14 Days. The Supervisor, Customer Service (African-American female) was the deciding official to issue Complainant the January 18, 2018 Notice of Suspension for “Unsatisfactory Work Performance/Failure to be Regular in Attendance”. The record contains a copy of the January 18, 2018 Notice of Suspension wherein the supervisor placed Complainant on notice that he would be suspended for 14 days for being unable or unwilling to meet the requirements of his City Letter Carrier position when he was absent on the following dates: October 11 -12, 20, 25 - 27, 2017 (48 hours of unscheduled sick leave); November 2-3 and 17-18, 2017 (32 hours of unscheduled sick leave); December 11 and 20-21, 2017 (8 hours of Leave Without Pay (“LWOP”) and 16 hours of unscheduled sick leave); and January 3-5, 2018 (24 hours of LWOP). The supervisor noted that during the January 8, 2018 Pre-Disciplinary Interview (“PDI”), Complainant was unable to provide excusable reasons for his frequent absences. Regarding claim 2, Complainant alleged that on February 17, 2018, he was issued another 14- day suspension. The supervisor acknowledged that on February 17, 2018, she issued Complainant the suspension for “Unsatisfactory Work Performance, Failure to Discharge Your Duties Conscientiously and Effectively, and Failure to Follow Instructions”. The record contains a copy of the 14-Day No Time Off Suspension dated February 17, 2018. Therein, the supervisor stated that on February 3, 2018, Complainant filled out a 3996 form (a request for auxiliary assistance to complete his route) requesting 2 hours and 30 minutes of overtime/assistance to complete his assigned duties. The supervisor stated at that time, Complainant was instructed “to complete his route in 8 hours due to down time on your job due to your businesses and schools are closed on Saturdays. You pulled your route down at 9:33 am, I instructed you to leave for the street but you did not leave for the street until 10:38 am. You returned from the street at 16:30 pm with [certain mail routes] which is about 1.50 hours’ worth of undelivered mail and still took 8 units of unauthorized Over-Time.” 2019001653 4 The supervisor noted that during the PDI, Complainant did not provide an explanation for his failure to complete his assignment. Furthermore, the supervisor determined that Complainant was in violation of section 665.13 “Discharge of Duties” of the ELM and M-41 City Deliver Carrier Handbook. Regarding claim 3, Complainant asserted that on March 7, 2018, he was put on Emergency Placement in an Off-Duty Status, and subsequently on April 12, 2018, he was issued a Notice of Removal. The supervisor explained that on March 7, 2018, she placed Complainant on Emergency Placement due to allegations of inappropriate conduct. Specifically, the supervisor stated that on March 3, 2018, Complainant discarded deliverable mail into an Undeliverable Bulk Business Mail (“UBBM”) tub. Subsequently, the supervisor issued Complainant a Notice of Removal dated April 12, 2018 for “Failure to Properly Discharge the Duties of Your Position.” The supervisor stated that the mail in which Complainant placed in the tub “was all good deliverable mail, properly addressed, and properly endorsed.” The supervisor noted that five Carriers had to deliver the mail that was discarded by Complainant. The supervisor noted that on March 7, 2018, Complainant was interviewed Office of Inspector General (“OIG”), where he falsely alleged that the discarded mail was not delivered because the some of the houses were vacant, the customers’ boxes were full, or the customers did not want to receive the papers. The supervisor stated that following the March 23, 2018 PDI, she determined that Complainant’s actions on March 8, 2018 and the subsequent interviews with him “make clear [Complainant] cannot be trusted to work for the Postal Service. [He] created a lack of trust in [his] ability to perform [his] duties when [he] intentionally placed deliverable mail, for which [he was] responsible, in an area that is destined for destructive. This misconduct is a serious threat to the core responsibility of a letter carrier to deliver all mail. Mailer and customer expectations along with the Postal Service standards and reliability are impacted by actions such as this. There is simply no excuse for this type of behavior.” As detailed above, Agency management articulated a legitimate, nondiscriminatory reason for its actions. Complainant failed to prove, by a preponderance of the evidence, that these legitimate explanations were actually a pretext designed to mask the discrimination and/or retaliatory animus. While Complainant pointed to several coworkers he claimed were treated more favorably by the supervisor, she explained in some detail why the actions of these employees were not comparable to that of Complainant. She also established that some of the comparators were similarly issued disciplinary action. Moreover, most of the comparators were male like Complainant, and many were also African American, decreasing the likelihood that race, color or gender played a role in the disciplinary actions taken against Complainant. 2019001653 5 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred.3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 3 Because we have affirmed the Agency’s finding of no discrimination of claim 1 on the merits, we find it unnecessary to address the alternative dismissal of this claim. 2019001653 6 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 25, 2019 Date