Joseph A. Panugaling, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 31, 2007
0120070971 (E.E.O.C. May. 31, 2007)

0120070971

05-31-2007

Joseph A. Panugaling, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Joseph A. Panugaling,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070971

Agency No. 4G770021406

DECISION

On December 9, 2006, complainant filed an appeal from the agency's

November 24, 2006, 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 appeal is deemed timely and

is accepted pursuant to 29 C.F.R. � 1614.405(a).

On July 12, 2006, complainant filed an EEO complaint alleging

discrimination on the bases of race (Asian), national origin (Filipino),

and reprisal1 for prior protected EEO activity (Title VII) when he was

issued a Notice of Suspension (No Time Off) of 14 days for Unsatisfactory

Work Performance and Failure to Follow Instructions.2 Following an

investigation, complainant requested a final agency decision (FAD),

and the agency found that it did not discriminate against complainant.

At the time of events giving rise to this complaint, complainant worked

as a City Carrier at an agency facility in Houston, TX. The agency

explained that it issued discipline to complainant when, in March 2006,

his actions delayed the delivery of the mail, i.e., he refused to help

deliver another route, and, although assigned to an additional route,

he refused to deliver it on three occasions.

Generally, claims of disparate treatment, such as complainant's, are

examined under the tripartite analysis first enunciated in McDonnell

Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to

prevail, s/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. McDonnell Douglas, 411

U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).

Once complainant has established a prima facie case, the burden then

shifts to the agency to articulate a legitimate, nondiscriminatory reason

for its actions. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). If the agency is successful, the burden

reverts back to the complainant to demonstrate by a preponderance of

the evidence that the agency's reason(s) for its action was a pretext

for discrimination. At all times, complainant retains the burden of

persuasion, and it is his/her obligation to show by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In the matter before us, although the agency found that complainant failed

to establish a prima facie case, assuming he done so, we find that the

agency articulated legitimate, nondiscriminatory reasons for its action

in issuing the suspension to complainant. The agency stated it relied

on its rules and regulations and that it considered the seriousness of

the infractions.3 Complainant has not carried his burden to demonstrate

pretext through the production of probative evidence, i.e., that the

agency's explanation was not its true reasons and that those reasons

were based on discriminatory factors. Complainant presented only his own

assertions and speculations that, without more, do not constitute evidence

of discrimination.4 Based on a thorough review of the record and the

contentions on appeal, including those not specifically addressed herein,

we find that complainant has not shown that the agency discriminated

against him based on his race or national origin.

CONCLUSION

Accordingly, the agency's decision 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

____5/31/07______________

Date

1 Complainant had no prior EEO activity, and the agency dismissed his

claim based on reprisal. We affirm the agency's dismissal based on our

review of the record.

2 In the grievance process, the suspension was reduced to a letter of

warning (LOW). Although the agency and union agreed that just cause

existed for the issuance of the suspension, because complainant had no

prior discipline, the penalty was reduced to an LOW.

3 The agency also noted that, because complainant provided little

information to the record (prior to issuance of the FAD), the agency's

analysis of his claim was necessarily limited.

4 On appeal, in addition to the instant matter, complainant also

addressed new or different matters. The Commission has held that it

is not appropriate for a complainant to raise new claims for the first

time on appeal. See Hubbard v. Department of Homeland Security, EEOC

Appeal No. 01A40449 (April 22, 2004). Should he wish to pursue these

claims, complainant is advised to contact an EEO counselor to begin the

administrative process.

??

??

??

??

2

0120070971

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120070971