0120090848
04-02-2009
Kenneth A. Giles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth A. Giles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090848
Agency No. 4C-190-0041-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 14, 2008 final decision concerning his
equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Labor Relations
Specialist, EAS-23, at the agency's Philadelphia Metropolitan Customer
Service District in Philadelphia, Pennsylvania.
On April 26, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the basis of sex (male) when:
on December 17, 2007, he was issued a Letter of Warning (LOW) in lieu
of a Seven (7) Day Suspension.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On October 22, 2008, the AJ issued an order, dismissing
the formal complaint from the hearing process. In her Order, the AJ
concluded that because complainant failed to show cause concerning his
failure to submit an affidavit to the EEO investigator in a timely manner,
she remanded the case to the agency for issuance of a final decision.
Therefore, the agency issued the instant final decision on November 14,
2008.
In its November 14, 2008 final decision, the agency found no
discrimination. The agency concluded that complainant did not establish
a prima facie case of sex discrimination. The agency further found even
assuming, for the sake of argument only, complainant established a prima
facie case of sex discrimination, management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
The Manager Labor Relations (MLR), also complainant's supervisor, stated
that she was the deciding official to issue complainant a LOW in Lieu of
Seven (7) Day Suspension dated December 14, 2007 for failure to follow
instructions/failure to execute his assigned duties timely to avoid lost
date and unnecessary cost. MLR further stated that she issued complainant
the LOW in accordance with the Employee and Labor Relations Manual,
Section 665 "Standard of Conduct," Section 665.11 "Loyalty," Section
665.13 "Discharge of Duties," and Section 665.15 "Obedience to Orders."
During an October 29, 2007 Labor Relations staff meeting with complainant,
MLR reviewed cases which were scheduled to be arbitrated during the
remainder of the month and for November 2007. MLR instructed complainant
to bifurcate the case assigned to him that was scheduled for arbitration
on October 31, 2007, because it was untimely. The record further
reflects that complainant agreed and indicated that he would request to
have the case bifurcated on the issue of timelinesss; and be prepared to
address the merits of the case for an arbitration scheduled for October
31, 2007. On October 30, 2007, MLR again approached complainant to
assure that complainant was proceeding with the untimely arguments; and
complainant gave the impression that he was doing so. On October 31,
2007, the day of the scheduled arbitration, MLR called complainant into
her office prior to the hearing to again instruct him that if complainant
had a problem with the request to bifurcate the case, he was to call her
into the arbiration. The record reflects that after he left MLR's office,
complainant met with the union steward and they drew up a settlement.
The settlement was negotiated prior to going into the room and meeting
with the Arbitrator.
Furthermore, the record reflects that it was not until that afternoon
when MLR learned that complainant in fact did not present the case
pursuant to MLR's instructions. The record reflects that when MLR
confronted complainant about the case, complainant indicated that the
Arbitrator was going to write a decision based on a settlement that he
and the union agreed to negotiate. Complainant then handed an unsigned
handwritten agreement which he and the union allegedly negotiated.
As a result of complainant's failure to follow instructions, the agency
was forced to pay the Arbitrator for services he did not technically
render and for travel; and to provide employees with rights they were
not contractually obligated to receive.
A claim of disparate treatment is examined under the three-party 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
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
actions which complainant did not prove were a pretext for discrimination,
and that complainant has not demonstrated that these reasons were a
pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
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
April 2, 2009
__________________
Date
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0120090848
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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