0120114062
02-21-2013
James P. Flynn, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
James P. Flynn,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120114062
Hearing No. 540201100157X
Agency No. 1E801006410
DECISION
On August 25, 2011, Complainant filed an appeal from the Agency's July 25, 2011, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's facility in Denver, Colorado.
On June 18, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO when:
1. on March 13, 2010, as an unassigned regular, he was assigned a job on Tour 1 which had an adverse effect on his health (asthma);
2. on July 6, 2010, he was informed that he was ineligible for the Time and Attendance Control System (TACS) position he bid on, and was not given the required amount of training hours needed to qualify for it; and
3. on an unspecified date, he was placed on a bidding restriction for 90 days and lost three bids as a result.
At the conclusion of the investigation, 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 comply with orders issued by the AJ. The AJ remanded the complaint to the Agency, and the Agency issued a final decision 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 instant 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").
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The Agency may rebut this initial inference with an articulation of legitimate, non-discriminatory reasons for the disputed actions. To ultimately prevail, Complainant must 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of reprisal discrimination, we find further that the Agency articulated legitimate, non-discriminatory reasons for its conduct as alleged in this matter as detailed below.
Claim 1
The record in this matter indicates that in mid-January 2010, Complainant learned from co-workers that his name was on the unassigned, unencumbered clerks' list and that he would be assigned a position if he did not bid for one. The record further indicates that Complainant submitted a bid through the TACS office. Complainant was awarded the bid "pending qualification." Thereafter, Complainant was assigned to a Tour 1 automation job at the Agency's facility. Complainant alleges that the Agency's assignment of Complainant to the Tour 1 position violated the Agency's agreement with the Union. Specifically, Complainant contends that the Agency was not permitted to assign him to the automation job because of his pending bid in the TACS system. According to the Agency, Complainant was notified in a letter dated December 4, 2008, that his bid job was being abolished and that effective January 15, 2009, he would be assigned to a position in accordance with the needs of the Agency. The letter also advised Complainant that he would retain his seniority and could bid on any assignment for which he was eligible. Additionally, the Agency indicated that Complainant was advised that in the event he was not the successful bidder on a new assignment, he could be assigned to any vacant duty assignment in his craft for which there was no successful bidder.
Complainant was assigned to the Tour 1 Automation position on March 13, 2010, in response to the fact that the Agency was receiving more automated equipment which required staffing and the jobs on Tour were being eliminated due to a decrease in the volume of mail. The record contains reference to a report dated October 30, 1995 from Complainant's doctor indicating that Complainant had chronic obstructive pulmonary disease (COPD) and recommended that he avoid machine operation for six months and in a report dated January 27, 2009, the Complainant's doctor reported that according to Complainant, machines operated at night presented additional environmental exposure hazards due to his COPD. The record indicates that in several letters dating back to May 2009, the Agency asked Complainant to provide updated medical documentation regarding his current medical restrictions. In response to the Agency letter dated June 3, 2009, Complainant returned a letter on June 15, 2009 indicating only that he would like to be considered for a reasonable accommodation. The Agency mailed Complainant additional letters in June and July 2009 requesting that he provide documentation from his treating physician to which Complainant did not reply. Finally, in a letter dated August 7, 2009, Complainant was mailed a Final Request for Medical Information. Therein, Complainant was advised that if he did not respond, the Agency could not proceed with consideration of Complainant's request for reasonable accommodation. The record contains no additional information regarding Complainant's medical restrictions with respect to the type of assignment he could perform.
Claim 2
According to the position description for the TACS Time and Attendance Clerk position, applicants were required to demonstrate that they have knowledge of computer systems at a level sufficient to operate keyboard devices, input data, and obtain reports and information. Complainant was provided 40 hours of training for the pending TACS Clerk position from June 28, 2010 to July 6, 2010. The record further indicates that following training, Complainant was found to be ineligible for the position based on the results of a written evaluation of computer skills administered on July 6, 2010. According to the Agency, Complainant failed to demonstrate the computer skills required for the position. The Agency further indicates that Complainant was provided 40 hours of training as stipulated in the Agency's agreement with the Union.
Claim 3
The record further indicates that after Complainant was found to be ineligible for the TACS Clerk position, he was placed on a 90 day-bid restriction. According to the Agency, the restriction is generated by the TACS system. According to an Agency official, "the system makes [Complainant's] bids ineligible during this 90 day bid restriction based on failure to qualify on the TACS and Attendance position." The Agency maintains that the placement on the 90-day bid restriction was determined by the TACS in accordance with Agency policy.
After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that management's articulated reasons for its actions were a pretext for discrimination on any alleged basis.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination
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 21, 2013
__________________
Date
2
0120114062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114062