0120082724
11-14-2008
Robert Romano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert Romano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082724
Agency No. 4F-900-0089-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 23, 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.
During the period at issue, complainant was employed as a City Carrier,
Q-CC-01, at the agency's Sunset Station in Los Angeles, California.
The record reflects that on February 6, 2007, complainant, a class agent,
initiated a class complaint of discrimination which was formally filed on
March 21, 2007. On September 28, 2007, an EEOC Administrative Judge (AJ)
issued a decision whereby he concluded that the class complaint should not
be certified as it failed to meet the class requirement of "numerosity."
Subsequently, the agency issued a final action dated October 25, 2007,
implementing the AJ's decision.
Thereafter, complainant filed an individual complaint on September 28,
2007, which is the subject of the instant case. Therein, complainant
alleged that the agency discriminated against him on the bases of race
(European1), sex (male) and color (white) when, since December 23,
2006, he had been treated differently than other employees with regard
to choosing his own start time; parking privileges; administration of
time-keeping practices; and denial of access to the grievance procedure.
On November 8, 2007, the agency issued a partial dismissal. The agency
accepted complainant's allegations that he was treated differently
than other employees with regard to choosing his own start time,
parking privileges, and administration of time-keeping practices for
investigation. The agency dismissed complainant's allegation that he
was treated differently than other employees with regard to being denied
access to the grievance procedure, pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. Specifically, the agency determined that
this claim constituted a collateral attack on the negotiated grievance
process.
On December 5, 2007, complainant initiated EEO Counselor contact
concerning a new allegation that he was discriminated against on the bases
of race, sex, color, and retaliation when, on or around May 14, 2007,
he was subjected to a Fitness for Duty examination. Informal efforts
to resolve his concerns were unsuccessful. The record reflects that
in his affidavit dated January 28, 2008, complainant requested that
his formal complaint be amended to include the new claim. The record
further reflects that the agency accepted complainant's request to have
his formal complaint amended to the new claim.
On November 8, 2007, the agency issued a second partial dismissal.
Therein, the agency framed complainant's claims in the following fashion:
1. since December 23, 2006, he was treated differently than other
employees with regard to choosing his own start time, parking privileges,
and administration of time-keeping practices;
2. on March 24, 2007, he was placed on emergency suspension; and
3. on or around May 14, 2007, he was subjected to a Fitness for Duty
examination.
On February 4, 2008, the agency issued a partial dismissal. Therein,
the agency accepted claims 1 and 2 for investigation. The agency
dismissed claim 3 on the ground of untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2). The agency determined that
complainant's initial EEO Counselor contact was on December 5, 2007,
which was beyond the 45-day limitation period.
At the conclusion of the investigation of claims 1 and 2, complainant
was provided with a copy of the report of investigation and notice of
his right to request a hearing before an AJ or a final agency decision.
Complainant requested a final agency decision. In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b), finding no discrimination.
In its April 23, 2008 final decision, the agency found that complainant
failed to establish a prima facie case of race, sex, color, and reprisal
discrimination concerning claims 1 and 2. The agency further found that,
assuming complainant establish a prima facie case, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext for discrimination.
Finally, the agency determined that in its November 8, 2007 and February
4, 2008 partial dismissals, it properly dismissed complainant's allegation
regarding access to the grievance procedure for failure to state a claim,
and his allegation regarding the fitness for duty examination for untimely
EEO Counselor contact.
Regarding claim 1, the Supervisor, Customer Services (SCS), stated that
complainant was not treated differently with respect to choosing his
own start time. SCS further stated that if a carrier carried overtime,
their starting time was 6:30 a.m. and if they did not carry overtime,
their starting time was 7:00 a.m. SCS stated that complainant was not
treated differently in regard to parking privileges. Specifically,
SCS stated that "everybody parks in employee lot except for those with
the most seniority." SCS stated that complainant did not have the
most seniority. SCS stated that no one had a problem with time-keeping
practices except complainant. SCS stated that, unlike other employees
who worked their time, complainant went on the floor and argued about it.
Regarding claim 2, SCS stated that on March 24, 2007, she observed
complainant "shouting racial comments at casual clerks and other
carriers. I instructed him to return to his case and he failed to
follow my instructions." SCS stated that she reported the incident to
the Manager (M1) who placed him on Emergency Placement.
M1 stated that he placed complainant on Emergency Placement because he
was "being insubordinate on the workroom floor. He was intimidating
the other carriers with his outbursts." M1 stated that complainant's
race, sex, color, and prior protected activity were not factors in his
determination to place him on Emergency Placement.
Claims 1 and 2
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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. We further find 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 concerning
claims 1 and 2 because the preponderance of the evidence of record does
not establish that discrimination occurred.
Denied access to the grievance procedure
In its November 8, 2007 partial dismissal, the agency dismissed
complainant's allegation that he was treated differently than other
employees with regard to being denied access to the grievance procedure
for failure to state a claim. Specifically, the agency determined that
this claim constituted a collateral attack on the negotiated grievance
process.
The Commission determines that the agency properly dismissed complainant's
allegation for failure to state a claim. Complainant's claim constitutes
a collateral attack on the negotiated grievance process. The Commission
has held that an employee cannot use the EEO complaint process to lodge
a collateral attack on another proceeding. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United
States Postal Service, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
25, 1993). The proper forum for complainant to have raised her challenges
to actions which occurred during the negotiated grievance process was
within that forum itself. It is inappropriate to now attempt to use
the EEO process to collaterally attack actions which occurred during
the negotiated grievance process.
Subjected to a Fitness for Duty Examination
In its February 4, 2008 partial dismissal, the agency dismissed claim 3
on the grounds of untimely EEO Counselor contact. The agency determined
that complainant's initial EEO Counselor contact was on December 5,
2007, which was beyond the 45-day limitation period.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The agency properly dismissed the complaint on the grounds of untimely
EEO Counselor contact. The alleged discriminatory event occurred on
or around May 14, 2007, but complainant did not initiate contact with
an EEO Counselor until December 5, 2007 which was beyond the forty-five
(45) day limitation period. Complainant has failed to provide sufficient
justification for extending or tolling the time limitation.
In summary, the agency properly dismissed complainant's allegation that he
was denied access to the grievance procedure for failure to state a claim,
and his allegation that on or around May 14, 2007, he was subjected to
a Fitness for Duty Examination on the grounds of untimely EEO Counselor
contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 14, 2008
Date
1 We note that under the laws enforced by the Commission, the term
"European" would denote national origin rather than race.
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0120082724
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036