0120142197
01-25-2017
James S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
James S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120142197
Hearing No. 450201300290X
Agency No. 1G753002812
DECISION
On May 27, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 1, 2014, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator on Tour 3 at the Agency's Dallas Processing and Distribution Center in Texas. Complainant's first-level supervisors were the Transportation Operations Supervisors (S1 - Caucasian, White; S2 - African-American, Black). Complainant's second-level supervisor was the Postal Vehicle Services Manager (M1 - African-American, Black). Complainant was the union steward for employees on Tour 3.
Complainant filed an EEO complaint alleging that the Agency discriminated against him:
A. On the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity (filing a prior EEO complaint that was resolved in September 2009; initiating the instant EEO complaint in August 2012; representing employees in EEO complaints as a union steward) when, from May 2012 to October 2012, management subjected him to harassment. As part of his harassment claim, he alleged that S1 bypassed him for overtime on five occasions (incident 1).2 In addition, he alleged that, after an August 8 incident where he refused to scan the mail, S1: placed him in an off-duty status without pay (incident 2), conducted a pre-disciplinary meeting with him with a postal police officer present (incident 3), and issued him a notice of removal (incident 4).3
B. On the basis of reprisal for prior protected EEO activity when, from December 2012 to April 2013, management subjected him to harassment. As part of his harassment claim, he alleged that S1: changed his run schedule on one occasion (incident 5), spoke loudly and unprofessionally to him on one occasion about clocking in (incident 6), and conducted a pre-disciplinary meeting with him on one occasion about being late on his scheduled run (incident 7). In addition, he alleged that, after he refused on three occasions to sign for receipt of mail or equipment and to load or unload containers of mail, S2 conducted pre-disciplinary meetings with him and issued him a notice of removal (incident 8).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ granted the Agency's December 11, 2013, motion for a decision without a hearing and issued a decision without a hearing on April 21, 2014. The AJ concluded that Complainant did not establish that management subjected him to discrimination as alleged.
Regarding claim A, the AJ found that Complainant did not show that the incidents were based on his race, color, or prior protected EEO activity. Specifically, the AJ found that management articulated legitimate, nondiscriminatory reasons for its actions. As to incident 1, the AJ cited S1's affidavit testimony that Complainant refused the overtime, so she offered it to the next person in seniority on the overtime desired list. As to incident 2, the AJ cited S1's affidavit testimony that, on August 8, Complainant displayed conduct and communication deemed to be threatening to his supervisor and others, including using expletives on the workroom floor. According to S1, Complainant raised his voice at her, called her a "dumb a**" and a "b*tch," and said, "I am going to get you one way or another." As to incident 3, the AJ cited S1's affidavit testimony that she requested the presence of a postal police offer because of the events of the previous day (August 8). As to incident 4, the AJ cited S1's affidavit testimony that, on August 8, Complainant failed to follow her instructions to scan the mail and displayed conduct that was unbecoming a postal employee. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that management's reasons were a pretext for discrimination based on his race, color, or prior protected EEO activity.
Regarding claim B, the AJ found that Complainant did not show that the incidents were based on his prior protected EEO activity. Specifically, the AJ found that management articulated legitimate, nondiscriminatory reasons for its actions. As to incident 5, the AJ cited S1's affidavit testimony that she ordered Complainant to make an extra run on one occasion because he had approximately three hours of available time between runs and she needed a driver to make an extra trip after she received a call from another facility. As to incident 6, the AJ cited S1's affidavit testimony that she asked Complainant why he clocked in at 2:45 p.m. when his run did not start until 3:30 p.m., as someone would have to cover the last part of his run so he would not go into penalty overtime. As to incident 7, the AJ cited S1's affidavit testimony that Complainant was late on his scheduled run. As to incident 8, the AJ cited S2's written statement that Complainant failed to follow instructions when he refused to perform specific duties of his job, including refusing to sign for receipt of mail or equipment and to load or unload containers of mail.
The Agency subsequently issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal.
On appeal, Complainant contends that the AJ erred in finding no discrimination. Specifically, Complainant argues that management treated him differently than his coworkers and singled him out because of his race, color, and prior protected EEO activity. As evidence of the differing treatment, Complainant cites affidavit testimony from five of his coworkers (C1-C5).
Upon review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that race, color, or reprisal discrimination occurred.
Although Complainant argues that management treated him differently than his coworkers, he did not show that any differing treatment was because of his race, color, or prior protected EEO activity. For example, C1 averred that Complainant "was treated differently because [he] is a union steward." ROI, at Aff. J. In addition, C2 averred that S1 "has many time[s] lashed out at [Complainant] for simply requesting union time" and that he has seen "[Complainant] request union information and [S1] blow[s] up at him[,] it is an ongoing problem." Id. at Aff. L. Moreover, C3 averred that S1 "has extreme contempt for [Complainant] because he is a union steward and tries to make management follow the rules as set in the contract." Id. at Aff. M. Further, none of the coworker affidavits contain any testimony that management treated Complainant differently because of his race, color, or prior protected EEO activity. Id. at Aff. J-N. To the extent that management treated Complainant differently because he was a union steward, there is no evidence in the record that management disliked him because of his representation of employees in the EEO complaint process as opposed to his representation of employees on non-EEO matters in the grievance process. See generally EEOC Compliance Manual Section 15, "Race and Color Discrimination," EEOC Notice No. 915.003, � 15-V.A.2 (Apr. 19, 2006) ("[E]ven if the employer's explanation lacks credibility, discrimination will not be found if the evidence affirmatively demonstrates that the employer's real motivation was not . . . [a] protected EEO trait, but something not covered by the laws enforced by EEOC . . .").
After a review of the record in its entirety and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that race, color, or reprisal discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
__1/25/17________________
Date
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 Subsequently, as part of a grievance settlement, Complainant was paid for overtime on four occasions.
3 Subsequently, as part of a grievance settlement, Complainant's removal was reduced to a seven-day suspension.
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