0120103749
02-08-2011
Jaime L. Mendez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Jaime L. Mendez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120103749
Agency No. 4G-780-0024-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's August 12, 2010 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. 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 was employed as a City Carrier
at the Agency's Brownsville Post Office in Brownsville, Texas.
On March 13, 2010, Complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On February 16, 2010, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency discriminated against him on
the bases of race (Hispanic), national origin (Hispanic/Mexican/American),
sex (male), age (over 40), and in reprisal for prior protected activity
when:
(1) he was issued a Notice of Seven-Day Suspension dated October 1,
2009, which was subsequently reduced to an official discussion; and
(2) he was issued a Letter of Warning (LOW) dated October 22, 2009;
(3) on January 25, 2010, it took him eight minutes to sort missorted
letters and he had to wait for nine (9) minutes at the registry cage; and
(4) on February 2, 2010, he was twenty minutes late due to construction;
it took him eight minutes to do his afternoon functions and he had to
wait nine minutes at the registry cage.1
On April 12, 2010, the Agency issued a partial dismissal. Therein,
the Agency accepted claims (1) - (2) for investigation. The Agency,
however, dismissed claims (3) - (4) for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that
Complainant failed to show he suffered a personal loss or harm to a term,
condition or privilege of his employment. The Agency also dismissed claim
(3) on the alternative grounds of untimely EEO Counselor, pursuant to
29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's
initial EEO Counselor contact occurred on March 13, 2010, which it found
to be beyond the 45-day limitation period in regard to the matter raised
in claim (3).
After the investigation claims (1) - (2), Complainant was provided
with a copy of the report of investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond.
On August 12, 2010, the Agency issued the instant final decision, finding
no discrimination. The Agency found that Complainant did not establish
a prima facie case of race, national origin, sex, age and reprisal
discrimination. The Agency further found that assuming, arguendo, that
Complainant established a prima facie case of race, national origin,
sex, age and reprisal discrimination, the Agency management articulated
legitimate, nondiscriminatory reasons for its actions which Complainant
failed to show were a pretext.
Regarding claim (1), in the Notice of Seven-Day Suspension dated
October 1, 2009, Complainant's supervisor (S1) noted that on September
26, 2009, Complainant submitted a PS Form 3996 requesting 2.5 hours of
auxiliary assistance or overtime. The record further reflects that
S1 noted that a named supervisor authorized Complainant's request.
However, Complainant used 1.28 hours of unauthorized overtime. During
the investigative interview, S1 stated that Complainant's response
(regarding unfamiliarity with the route and its volume) was unacceptable.
S1 notified Complainant that he was being issued a seven-day suspension
because he was in violation of Sections 665.13 and 665.15 of the
Employee and Labor Relations Manuel (ELM); and Sections 111, 112.1,
112.22 and 112.24 of the M-41 Handbook City Delivery Carriers Duties
and Responsibilities.
The Postmaster (PM) stated that S1 issued Complainant a Notice of
Seven-Day Suspension for Unacceptable Performance/Unauthorized Overtime.
Specifically, PM stated that on September 26, 2009, Complainant requested
2.5 hours of OT on a PS 3996, the request was approved and [Complainant]
used an additional 1.28 hrs of OT [overtime]. I was the concurring
official only." Furthermore, PM stated that Complainant's race,
national origin, sex, age and prior protected activity were not factors
in management's decision to issue him a Notice of Seven-Day Suspension.
Regarding claim (2), in the LOW dated October 22, 2009, S1 notified
Complainant that since September 14, 2009, he made his office time on
route 21083 only once. S1 stated that on October 15, 16 and 20, 2009, she
conducted an office count on Complainant's route which he failed to make
office time on all three days. S1 stated that as a result, Complainant
was not meeting the minimum office standards of a City Letter Carrier.
Specifically, S1 noted that on October 15, 2009, Complainant was over by
16 minutes, on October 16, 2009, he was over by 2 minutes and on October
20, 2009, he was over by 18 minutes.
The record reflects that during a meeting, Complainant was provided an
opportunity to explain his actions. Complainant alleged that he did
not know what the minimum standards were for him, and that he felt that
there were some discrepancies on the 1838. When Complainant was asked
why he was casing letters and flats in a slow and methodical manner,
he asked "how fast is 18 and 8?" S1 found Complainant's explanation
to be unacceptable because he has been a letter carrier for more than
21 years and should know the basic carrier duties and should have been
capable of meeting the minimum standards of a letter carrier. S1 found
that Complainant was in violation of Sections 665.13 and 665.15 of the
ELM, Section 121.11 of Handbook M-41; and Sections 121.14 and 121.16 of
Handbook M-39 Management of Delivery Service.
PM stated that Complainant was issued a LOW for Unacceptable Performance
and Failure to Use Meet the Minimum Office Standards. PM further stated
that Complainant "has not been discriminated against; he has been issued
corrective action in an attempt to improve or correct his actions."
On appeal, Complainant, through his attorney, argues that the Agency erred
in finding no discrimination. Complainant requests that his Report of
Investigation file be reconsidered and "looked at again as to the facts
of the discrimination and retaliation that has been continually ongoing
against the Appellant." Complainant further states "Appellant filed a
timely complaint; timeliness is undisputed."
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).
In the instant case, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions, as addressed above. Neither
during the investigation nor on appeal has Complainant produced evidence
that these proffered reasons were a pretext for unlawful discrimination
and retaliation.
Complainant, on appeal, 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 concerning claims (1) -
(2) because the preponderance of the evidence of record does not establish
that discrimination occurred.
Partial Dismissal (claims (3) - (4))
In its April 12, 2010 partial dismissal, the Agency dismissed claims (3) -
(4) for failure to state a claim. The Agency also dismissed claim (3)
on the alternative grounds of untimely EEO Counselor contact.
Untimely EEO Counselor contact - claim (3)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
After a careful review of the record, we find that the Agency properly
dismissed claim 3 on the grounds of untimely EEO Counselor contact.
The record reflects that the alleged discriminatory event occurred on
January 25, 2010, but that Complainant did not initiate EEO Counselor
contact until March 13, 2010, which was beyond the forty-five (45) day
limitation period. We note that Complainant, on appeal, did not present
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c).
Therefore, the Agency's partial dismissal of claim 3 for untimely EEO
Counselor contact was proper.
Because we affirm the Agency's dismissal of claim (3) for the reasons
stated above, we find it unnecessary to address it on alternative grounds
(i.e. failure to state a claim).
Failure to State a Claim - claim (4)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Complainant has not alleged a personal loss or harm regarding a term,
condition or privilege of his employment. Therefore, without more,
we conclude that the Agency properly dismissed claim (4) for failure to
state a claim
Accordingly, we AFFIRM the Agency's dismissal of claim (3) on the grounds
of untimely EEO Counselor contact and claim (4) for failure to state
a claim.
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
February 8, 2011
__________________
Date
1 The record reflects that claims (3) - (4) were later amended to the
instant formal complaint.
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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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