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.
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0120070971
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070971