0120120052
03-12-2013
Matthew J. Kovalick, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Matthew J. Kovalick,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120120052
Agency No. 4C440002611
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 30, 2011 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 following reasons, the Commissions affirms the Agency's final decision (FAD) which found that Complainant failed to show that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Cleveland Beachwood Branch facility in Cleveland, Ohio. On February 14, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On November 17, 2010, he was issued a Notice of Removal effective December 17, 2010 for Unsatisfactory Work Performance/Unauthorized Extension of Street Time/Failure to Follow Instructions/Failure to Perform Duties in a Safe Manner; and
2. On December 22, 2010, he was issued a Notice of Removal effective January 22, 2011, for Improper Conduct/Unsatisfactory Work Performance/Failure to Follow Instructions.
Following an investigation of this matter, Complainant was given a choice of a hearing before an EEOC Administrative Judge (AJ) or a FAD. When Complainant did not respond, a FAD was issued. The FAD found that Complainant failed to show that she was subjected to discrimination. Specifically, the FAD found that Complainant failed to establish a prima facie case of reprisal because management alleged that it was not aware of his prior EEO activity. Further, the FAD indicated that assuming arguendo that management was aware of Complainant's prior EEO activity, the activity occurred nine months earlier than the November 2010, incident, which was too remote in time to establish a nexus between the incidents.
Notwithstanding, the FAD indicated that assuming arguendo Complainant established a prima facie case of reprisal, the Agency articulated legitimate nondiscriminatory reasons for its actions, namely that Complainant was issued a Notice of Removal on November 17, 2010, after he was seen delivering the mail without his mail bag. Management maintained that Complainant and all carriers had been repeatedly told that a mail bag was to be carried at all times as it was to be used for safety reasons. Management indicated that Complainant was issued the notice because he was working in an unsafe manner and had failed to follow instructions. Complainant was also cited for failing to deliver the mail in a timely manner. Complainant argued however, that he was taking a lunch break when the mail was delivered to him to complete within his eight hour shift.
On December 12, 2010, Complainant was again issued a Notice of Removal, for failing to follow instructions. Complainant approached a customer who had filed a complaint against him when she alleged that he had allowed her building management to photograph her mail. Complainant became very upset regarding this accusation and explained that the complaint was not true. Complainant was told not to contact the customer. Complainant however, contacted the customer and she again complained. As a result, Complainant was issued a second Notice of Removal.
To show pretext, Complainant argued that other postal carriers were treated more favorably. The evidence however, showed that similar situated letter carriers were disciplined in the same manner that Complainant was disciplined. Further, management indicated that it observed Complainant delivering the mail without his bag, and had specifically told Complainant not to contact the customer but in both situations he failed to follow instructions. The Agency found that Complainant failed to show that the legitimate, nondiscriminatory reasons it articulated were pretext for discrimination. The record showed that both matters were grieved and reduced to suspensions.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination based on reprisal for prior EEO activity, the evidence shows that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the nondiscriminatory reasons given by the Agency were pretext for discrimination or that discriminatory animus was involved. On appeal, Complainant provided copies of the grievances regarding these matters but he did not establish that the Agency was incorrect in finding that he did not carry the mail bag as instructed or that he did not approach the customer after being told not to contact her. Accordingly, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's FAD because the preponderance of the evidence of record does not establish that discrimination occurred.
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
__3/12/13________________
Date
2
0120120052
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120052