0120072553
05-06-2009
Juan Burrell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Juan Burrell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072553
Hearing No. 440-2007-00060X
Agency No. 4J-604-0106-06
DECISION
On May 3, 2007, complainant filed an appeal from the agency's April 6,
2007 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 accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At all times relevant to this complaint, complainant worked as a
Part-Time Flexible Letter Carrier at the Berwyn, Illinois Post Office.
Complainant has a record of disciplinary issues. For example, on
July 11, 2005, complainant received a Letter of Warning for failure
to follow instructions when he left mail unprotected. On July 16,
2005, complainant was issued a 7-day suspension for failure to follow
instructions and improper delivery of mail. Further, on September 8,
2005, complainant received a 14-day suspension for failure to follow
instructions and unacceptable conduct. Additionally, on October 25,
2005, complainant received a 30-day suspension for failure to follow
instructions and failure to perform assigned duties in a safe manner.
On June 7, 2006, complainant's supervisor (S1) received a complaint from
a customer on complainant's route. Subsequently, complainant called the
office requesting to speak with a specific supervisor (S2) about a problem
on his route. S1 informed complainant that any calls concerning the route
should be directed towards him because he was directly responsible for
complainant's assignments and performance. Complainant hung up on S1.
Because of the customer complaint and complainant calling about a problem
on the route, both S1 and S2 went to complainant's route to look for him.
S1 asserted that after he arrived on complainant's route, he approached
complainant to see if there was a problem. S1 stated that complainant
ignored him, even when he told complainant to stop. Complainant then went
to a customer who was out on his lawn and said, "Did you hear what he
just said to me?" S1 alleged that complainant turned to him and said,
"What if I just knock you out? Knock you on your ass and kick the
shit out of you?" S2 corroborated S1's testimony. Complainant, on the
other hand, asserted that he never threatened S1. Instead, complainant
alleged that S1 called him a "dumb, stupid ass nigger" after he approached
him on the street. The customer who complainant approached called the
office later that day, and stated that he was calling at complainant's
request and that complainant told him his supervisor had called him
"dumb." The customer did not leave a written statement. Complainant was
subsequently placed in emergency off-duty status without pay because of
the verbal threats he made towards S1.
By letter dated July 10, 2006, complainant was notified that he was
charged with unacceptable conduct and insubordination, and that he would
be removed from the agency no sooner than 30 days from the date of the
notice.
On August 21, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African American),
and in reprisal for prior protected EEO activity when:
1. On June 7, 2006, he was placed in emergency off-duty status without
pay, and his supervisor called him a "dumb and stupid ass nigger" while
he was delivering mail; and
2. On July 10, 2006, he was issued a Notice of Removal for unacceptable
conduct.
At the conclusion of the investigation, complainant was provided 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. On December 5, 2006, complainant received the AJ's scheduling
order, which set forth the date on which the pre-hearing submissions
were due. On March 1, 2007, the AJ issued an Order to Show Cause
to complainant for his failure to file pre-hearing submissions.
Complainant responded that he was not aware that he had to file
pre-hearing submissions. The AJ found that complainant did not establish
good cause for missing the deadline, and subsequently, on March 15, 2007,
remanded the complaint to the agency for the issuance of a final agency
decision. On April 6, 2007, the agency issued a final decision, finding
that complainant failed to establish by a preponderance of the evidence
that discrimination existed. Complainant now appeals to the Commission.
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 EEOC Management
Directive 110, 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").
Initially, while complainant did not raise on appeal the AJ's decision
to remand the complaint to the agency for a final decision, we find that
the remand was appropriate. Complainant was given adequate notice in the
scheduling order of the date that the pre-hearing submissions were due.
Complainant did not show good cause for missing the deadline. Therefore,
the AJ was correct in remanding the complaint to the agency for a final
decision.
Here, complainant alleges that he was subjected to discrimination
on the bases of his race (African American) and reprisal for prior
protected EEO activity. To prevail in a disparate treatment claim such
as this complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima
facie case by demonstrating that he or she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of
the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. 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). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. 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).
The McDonnell Douglas analytical paradigm need not be adhered to in all
cases. In appropriate circumstances, when the agency has articulated
legitimate, nondiscriminatory reasons for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has proven by
the preponderance of the evidence that the agency's explanations were
pretext for discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Here, the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Therefore, we will assume without so finding that complainant established
his prima facie cases of race and reprisal discrimination.
The agency articulated legitimate, nondiscriminatory reasons for
placing complainant in emergency off-duty status and ultimately issuing
complainant the Notice of Removal. Specifically, complainant physically
threatened a supervisor; therefore, under established agency procedures,
it was necessary to place complainant in emergency off-duty status.
Additionally, the Notice of Removal was in accordance with progressive
discipline, as complainant had a lengthy record of conduct that resulted
in disciplinary action.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
are pretext for discrimination. Complainant alleged that S1 called
him a "dumb, stupid ass nigger." However, S2 stated that he did not
hear S1 say this. Further, the customer who called on complainant's
behalf stated that complainant only told him that S1 called him "dumb."
In contrast, S2 corroborated S1's assertion that complainant physically
threatened S1. Further, the record establishes that the removal was in
conformance with progressive discipline, as complainant had a lengthy
history of disciplinary action. The record is devoid of evidence that
race or reprisal discrimination more likely than not played a role in
the agency's decision to place complainant on emergency off-duty status
and subsequently remove him from the agency. Therefore, complainant
has failed to establish that the agency's legitimate, nondiscriminatory
reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order, because a preponderance of the evidence of record does not
establish that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 6, 2009
Date
2
0120072553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5 0120072553