0120090144
10-15-2010
Norman M. Whittington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Norman M. Whittington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120090144
Agency No. 1H-374-0010-08
DECISION
Complainant filed an appeal from the Agency's June 2, 2008 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 Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian at the Agency's Memphis Bulk Mail Center, in Memphis Tennessee. On January 5, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when Complainant received a Memorandum Re: Seven Day Suspension, dated October 24, 2007.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency noted that at the time of the events described in the complaint, Complainant's prior EEO complaint1 was at the hearing stage of the EEO complaint process. Agency Final Decision (Ag Decision) at 5. The Agency further observed that Complainant had failed to fully cooperate with the investigation of the instant complaint. Specifically, Complainant had received questions from the investigator that Complainant had failed to fully answer. The Agency reasoned that if Complainant failed to meet his burden of proof due to any deficiency in the record, that deficiency would not be attributed to the Agency's failure to conduct an adequate investigation. Id. at 3. The Agency reasoned that Complainant had failed to establish a prima facie case of reprisal discrimination. Complainant had previously participated in the EEO process and Complainant had been subjected to an adverse action when he received notice of the Agency's intention to suspend him for seven days. However, the Agency did not find that Complainant established that the disciplinary action was motivated by reprisal for prior EEO activity. Id. at 5.
The Agency assumed, for the sake of argument, that Complainant established a prima facie case of reprisal discrimination. The Agency found that the Acting Manager, Maintenance Operations (S1) and the Supervisor Maintenance Operations (S2) provided legitimate, non-discriminatory reasons for Complainant's receipt of the suspension notice. Each had provided a statement regarding Complainant's failure to complete his work in the area of the facility to which he was assigned and that they failed to see him in the assigned area. The Agency found that the Acting Supervisor (S3), Maintenance Operations (204B), who issued the discipline to Complainant, had also observed Complainant's assignment had not been completed and that when S3 looked for Complainant, Complainant could not be found. Id.
The Agency found that Complainant was assigned on October 5, 2007, to area 915. The Agency stated that S3 had inspected area 915 several times during Complainant's shift and had found it unsatisfactory. S3's observations were supported by S1 and S2. S1 and S2 provided statements that Complainant's assigned area was not cleaned and that Complainant could not be found in his assigned area when S1 and S2 looked for him. Id. at 4. All three officials denied that Complainant's prior EEO activity played any role in the decision to discipline Complainant. The Agency therefore found that Complainant had not shown that the Agency's stated reasons were false and that reprisal was the real reason he received the notice of suspension. Id. at 6.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
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 V.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In the instant case, we find that Complainant established a prima facie case of discrimination based on reprisal. However, we find that Complainant did not show that the Agency's articulated reasons for its actions are a pretext and unworthy of belief. We find no dispute that Complainant engaged in the EEO process prior to the issuance of the October 24, 2007 suspension. Complainant's supervisors (S1, S2, and S3) were aware of his activity, and Complainant was subjected to an adverse employment action (issued a notice of seven-day suspension) in close proximity to the time in which he engaged in protected activity. Ag Decision at 4.
We turn to the Agency's explanation for issuing the notice of discipline and consider Complainant's evidence that the reasons are unworthy of belief. Specifically, we consider on appeal, the statements upon which the Agency's Final Decision relies. We note that the statement of S2 and the affidavit submitted by S2 during the investigation of the instant complaint. Record on Appeal, (unnumbered) at 24. We further note that S3 initialed Complainant's work assignment sheet, but the same document is annotated with additional comments stating that Complainant's duties were not complete, despite Complainant's mark on the sheet that his duties were completed. S3's affidavit is consistent with the documentary evidence. Id. at 22; ROI, Affidavit B, page 1. Complainant, however, did not submit a statement during the investigation or otherwise explain his whereabouts during the time when he was not located in his assigned area.
Additionally, the Commission considers evidence that the Agency's internal procedure regarding the issuing of discipline was not followed. Specifically, the evidence indicates that the disciplinary notice was made the subject of a grievance filed by the Union on Complainant's behalf, which grievance was resolved by rescinding the notice of suspension upon a finding that the Agency failed to adequately support its decision to discipline Complainant. Direct Appeal To Arbitration Joint Contract Interpretation Manual Review Form, GATS No. H06T-1H-D 08022282, February 20, 2008. We do not find, however, that the favorable results Complainant achieved as a result of pursuing relief through the grievance procedure compel us to conclude that discrimination was the real reason behind the disciplinary action. Based on a totality of the evidence, we find that Complainant has not established that more likely than not, the Agency's reasons for its actions were a pretext and that discrimination more likely than not motivated the Agency to issue discipline to Complainant.
CONCLUSION
We AFFIRM the Agency's Final Decision finding no discrimination.
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 15, 2010
__________________
Date
1 The Commission notes that in Norman Whittington v. United States Postal Service, EEOC Appeal No. 0120081522 (August 3, 2009), we considered a prior complaint filed by Complainant, Agency case number 1H-374-0006-07. The Agency's final decision in that case was issued on January 7, 2008, after Complainant's request for a hearing was withdrawn.
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0120090144
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090144