0120131885
08-30-2013
Jaime Bustamante, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Jaime Bustamante,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120131885
Agency No. 4E-852-0003-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 11, 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.
BACKGROUND
During the period at issue, Complainant worked as a Sales, Services/Distribution Associate at the Agency's Anthony, New Mexico Post Office.
On January 27, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when1:
1. On August 12, 2011, he was told by the Postmaster that the Postal Service preferred right handed people and was told that a named Supervisor Customer Services would be his supervisor; and
2. On December 7, 2011, he was issued a Notice of Removal for Failure to Follow Instructions, resulting in Absence Without Official Leave (AWOL) with an effective date of January 14, 2012.
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 (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 11, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that even if Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the Postmaster denied telling Complainant that the Postal Service prefers right-handed people. Specifically, the Postmaster stated that he told Complainant "the cases are set up for right-handed individuals, but that I did not care what hand he pitched mail with as long as he did his job. Nobody [stated] that he could not pitch mail with his left hand."
Further, the Postmaster acknowledged telling Complainant that the Supervisor Customer Services would be his supervisor. The Postmaster stated that he informed Complainant who his supervisor was when he met with him and "discussed the Office structure with him."
Regarding claim 2, the Postmaster stated that he was the deciding official to issue Complainant a Notice of Removal "after many attempts to get the complainant to report for duty." The record reflects that on August 13, 2011, Complainant was reinstated into the Postal Service as a Sales, Service/Distribution Associate until his removal on January 14, 2013. The Postmaster also stated that Complainant did not report for an investigative interview "to discuss his refusal to report for duty."
The record contains a copy of the Notice of Removal dated December 7, 2011. Therein, the Postmaster notified Complainant that he would be removed from Agency employment on January 14, 2012 for failure to follow instructions resulting in AWOL. Specifically, the Postmaster stated that after accepting the PTF Clerk position, Complainant was notified that he was required to attend Orientation for New Employees (ONE) training. Complainant did not attend the requisite training and he did not contact the Postmaster prior to the training to advise him of his intention to be absent and not report for the training. As a result, Complainant was charged with AWOL.
The record reflects that by letter dated August 16, 2011, the Postmaster instructed Complainant to report to the facility for an investigation interview relating to his failure to report for ONE training. Complainant did not appear for the investigative interview as instructed. The record further reflects that on August 18, 2011, the Postmaster sent Complainant a letter instructing him to report for ONE training on August 29-30, 2011. Complainant again did not attend the training and did not notify the Postmaster in advance of his intention to be absent and not report for training. By letter dated September 19, 2011, the Postmaster instructed Complainant to report to the facility for an investigative interview on September 22, 2011 for a second time pertaining to his failure to report to the ONE training. Complainant failed to report for the investigative interview.
Furthermore, the Postmaster determined that Complainant has "been repeatedly instructed to attend ONE training. This training is necessary to meet the requirements of postal employment. Additionally, complying with instructions is also an essential requirement of Postal Standards of Conduct. [Complainant was] made clearly aware that failure to attend the training as instructed may result in disciplinary action including removal. Despite these admonitions, [Complainant] still failed to comply with instructions and orders. [His] failure to adhere to these requirements violate the Postal Standards of Conduct, therefore [his] actions are incompatible with the postal employment."
Finally, the Postmaster determined that Complainant was in violation of the following sections of the Employee and Labor Relations Manual: 665.13 "Discharge of Duties," 665.15 "Obedience to Orders," and 665.42 "Absence Without Permission."
Complainant, on appeal, argues that the Agency erred finding no discrimination. For instance, Complainant argues that the Postmaster and the Agency did not adequately explain why the Postmaster made the comment that the Agency preferred right-handed employees. Complainant further states that on July 25, 2011 he requested reasonable accommodation but "the request was never approved and [Postmaster] did not give me an explanation on August 12, 2011."
Further, Complainant argues that the Supervisor Customer Services lied "about being a supervisor at the time of my prior EEO activity 00010, lied to [Postmaster] when she told him that I never worked for her 00012, and lied when she said that she did not have interaction as employee to supervisor 00013."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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).
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 pretextual.
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.
Finally, we note that Complainant, on appeal, raises a new claim that he was denied reasonable accommodation. This new claim was not previously raised by Complainant and it is inappropriate for Complainant to raise it for the first time on appeal. Complainant is advised that if he wishes to pursue any additional claims for the first time on appeal, he should initiate contact with an EEO Counselor.
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
August 30, 2013
__________________
Date
1 On February 21, 2012, the Agency issued a final decision dismissing the instant formal complaint on the grounds of untimely EEO Counselor contact. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Bustamante v. United States Postal Service, EEOC Appeal No. 0120121915 (August 20, 2012). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal
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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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