0120103728
10-25-2011
Larry A. Garza, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Larry A. Garza,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120103728
Agency No. 4G-780-01450-9
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s August 16, 2010 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. For the reasons
which follow, the Agency’s decision finding no discrimination is
AFFIRMED.
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s New Braunfels Post Office facility
in New Braunfels, Texas. In his complaint, Complainant alleged that he
was subjected to discriminatory harassment based on his national origin
(Hispanic) when on January 22, 2009, he was issued a letter of warning
(LOW) for failure to maintain a regular schedule.1
After the investigation, Complainant was provided with a copy of the
report of investigation (ROI) and with a notice of her right to request
a hearing before an EEOC Administrative Judge, or an agency decision
based upon the evidence in the case. Complainant did not respond. The
Agency then issued its decision finding no discrimination.
In its decision, the Agency found that Complainant had failed to establish
a prima facie case of discrimination. The Agency found further that even
assuming that Complainant had established a prima facie case, the Agency
had articulated a legitimate, nondiscriminatory reason for issuance of
the LOW and that Complainant failed to show its reason was pretextual.
Regarding City Carrier A, the employee identified by Complainant as
“Anglo” who was not disciplined although her attendance record
was allegedly worse than Complainant and who also allegedly failed to
provide proper documentation for her absences, the Agency stated that
City Carrier A, with the exception of a couple of days, used leave in
large blocks of time. Ex. 10. The Agency also noted the affidavits
of the Postmaster and Complainant’s supervisors which disclosed
that that all of City Carrier A’s absences were supported by medical
documentation; that City Carrier A had well documented medical issues; and
City Carrier A had to have several surgical procedures. Aff. B, Aff. C.
The Agency also noted that City Carrier A had more than adequate sick and
annual leave balances. The Agency further noted that on the other hand,
Complainant’s absences were sporadic and unscheduled and Complainant
did not have sufficient leave to cover his absences.
To prevail in a disparate treatment claim, 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 complainant
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 Dep’t 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, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983).
Because 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).
Upon review, the Commission finds that the Agency’s finding of no
discrimination was proper. Complainant was issued the LOW as a result
of his failure to maintain a regular schedule through his repeated
and unscheduled absences. Complainant has failed to show that the
Agency’s reason was mere pretext to hide unlawful discrimination.
The preponderant evidence does not establish that the Agency’s actions
were motivated by discriminatory animus. Complainant’s supervisor
stated that Complainant had longstanding attendance issues and that he
was absent about 30 percent of the time in any year and that the LOW was
issued as a result of Complainant’s many unscheduled absences. Aff. C.
Complainant’s supervisor also stated that Complainant performance was
good when he was present at work and he wanted to help Complainant correct
his attendance issues. He also stated that he had on several occasions
offered to reduce discipline to official discussions if Complainant
would commit to improving his attendance. Id.
Accordingly, the Agency’s decision finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 25, 2011
__________________
Date
1 This claim was previously before the Commission as Larry A. Garza
v. U.S. Postal Service, EEOC Appeal No. 0120093453 (February 3, 2010).
The Agency’s dismissal of the claim was reversed and the matter remanded
to the Agency for further processing.
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0120103728
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013