01a52095
04-12-2005
Jose Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose Lee v. United States Postal Service
01A52095
April 12, 2005
.
Jose Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52095
Agency No. 1H-328-0033-00
Hearing No. 150-2004-00113X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, an Automatic Faser and Canceler System (AFACS) Operator,
GS-5, at the agency's Orlando Processing and Distribution Center,
Orlando, Florida, filed a formal EEO complaint on July 26, 2003.
Therein, complainant claimed that the agency discriminated against him
on the bases of national origin (Filipino) and in reprisal for prior
EEO activity when:
(1) on April 17, 2003, he was issued a Letter of Warning.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Thereafter, complainant filed a Motion to Amend.
In his motion, complainant requested that the instant complaint be
amended to include the additional claim:
(2) complainant was discriminated against on the bases of national origin
and in reprisal for prior protected activity when on April 13, 2003,
a. Supervisor, Distribution Operations sought to coerce a co-worker to
file a grievance against complainant.
On July 21, 2004, the AJ granted complainant's request to have the instant
complaint amended by including the April 13, 2003 incident identified
as claim (2).
Following a hearing on November 15, 2004, the AJ issued a decision
finding no discrimination.
In her decision, the AJ found that complainant failed to establish
a prima facie case of national origin. The AJ also found that
complainant failed to demonstrate that similarly situated employees
not in complainant's protected class were treated more favorably under
similar circumstances. As to complainant's reprisal claim, the AJ
concluded that complainant established a prima facie case of reprisal
discrimination. The AJ, however, determined that the agency articulated
legitimate, non-discriminatory reasons for its actions. The AJ concluded
that complainant failed to establish by a preponderance of the evidence
that the agency's articulated reasons were a pretext to mask unlawful
discrimination.
Regarding claim (1), the AJ noted the Supervisor Distribution Operations
(SDO) stated that during the relevant period, he was assigned as a
floating supervisor. The SDO further stated that he was not assigned a
specific area but covered for other supervisors, including complainant's
supervisor, while on leave, vacation or days off. The SDO stated that
on March 23, 2003, he arrived to work and found a schedule prepared
by complainant's supervisor. The SDO stated that according to the
prepared schedule, complainant was assigned to dumping sacks; and that
on the same day, he was in attendance at a managers' meeting when
complainant came in "very angry, inquiring why I had moved him off of
his assignment." The SDO stated he attempted to diffuse the situation
by trying to talk quietly. The SDO stated that because he was unable
to calm complainant down, he instructed complainant to report to his
dumping sacks assignment. The SDO stated that a few minutes later, he
excused himself from the meeting and went to the dumping sacks where he
found complainant not dumping sacks. The SDO stated after attempting to
speak to complainant, he became loud and disruptive. The SDO stated "I
brought him off the workroom floor" and stopped by the managers' meeting
to request that the MDO accompany them to the MDO's conference room.
Further, the SDO stated that he and the MDO tried to settle complainant
down but that complainant refused to do so. The SDO stated that he
informed complainant that "if he did not quiet down, settle down, and
resume what he was supposed to be doing, that I would - - he would be in
direct violation of an instruction and that I would have to take action."
The SDO stated that after he instructed complainant to settle down,
complainant left the room. The SDO stated that he went to complainant's
work station and "again, he was not dumping sacks." The SDO stated
that after complainant informed him that he did not know how to dump
a sack, he trained complainant in the dumping sack procedure. The SDO
testified that while he was training complainant, complainant was still
"angry and abusive" towards him. The SDO stated that at the conclusion
of the investigative interview, he made a request that complainant be
issued a Letter of Warning for unsatisfactory performance.
The AJ also noted that an Acting Manager of Distribution Operations (MDO)
stated that on March 23, 2003, complainant interrupted the managers'
meeting "very angry and demanding from [SDO] something to do with his
scheduling or his assignment for that day." The MDO stated that a
short time later she joined SDO and complainant in the MDO's conference
room. The MDO stated that she and the SDO "were ready to sit down and
communicate with him, have a dialogue and explain the scheduling to him.
Right there and then he could have found out that the schedule was
not made by [SDO], but he refused to listen." The MDO stated that
complainant stated that he "only wanted his question answered, why he
was displaced. If not, he was going to leave." The MDO stated that
complainant then left the conference room. The MDO stated that she
informed the SDO that "we can't allow this type of behavior and that
an Investigative Interview needed to be done." The MDO stated that
she concurred with the SDO's request for discipline for complainant.
The MDO stated that complainant was disciplined "for disrespectful
behavior, for his angriness, for the way he talked to [SDO], and for
failure to follow instructions."
Regarding claim (2), the AJ noted in his testimony, the SDO acknowledged
having a conversation with complainant's co-worker concerning the March
23, 2002 �J.C. Penny� tower schedule. The SDO further stated that the
co-worker initiated the conversation because he �indicated to me that he
was dissatisfied about being displaced.� Specifically, the SDO testified
that the co-worker �normally� worked at the �J.C. Penny� tower, and that
he was not satisfied about being displaced by complainant. Furthermore,
the SDO stated �so at a later date I came in and told him: If you're
dissatisfied about that, you have the right to file a grievance.�
The agency's final action implemented the AJ's decision finding no
discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
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 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. 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).
The agency articulated legitimate, nondiscriminatory reasons for its
employment actions. The record reveals that complainant was issued a
Letter of Warning for unsatisfactory performance (claim (1)); and that
the SDO advised a named co-worker that he could file a grievance after
the co-worker expressed his dissatisfaction with being displaced from
his normal assignment (claim (2)). In his testimony, the SDO stated
that complainant's national origin and prior protected activity were
not factors in his determination to issue complainant a Letter of Warning.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that the agency's actions
were motivated by discriminatory animus toward complainant's national
origin or prior protected activity. We discern no basis to disturb the
AJ's decision.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
April 12, 2005
__________________
Date