0120123549
02-14-2013
Roberto Ifill, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Roberto Ifill,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120123549
Agency No. 1K221000512
DECISION
On September 7, 2012, Complainant filed an appeal from the Agency's undated final decision (FAD) 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Merrifield Processing and Distribution Center facility in Merrifield, Virginia.
On February 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic1), national origin (Panama), color (Black), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. Complainant did not have any clock rings and was missing hours for November 17, 18, 20, and 21, 2011;
2. Complainant received a Letter of Warning (LOW) dated November 23, 2011; and
3. Since October 29, 2011, Complainant has not had a time card most days.
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). The decision concluded that Complainant proved that the Agency subjected him to discrimination as alleged. Specifically, the Agency found that the Agency articulated legitimate nondiscriminatory reasons for its actions and that Complainant failed to establish that such articulated reasons were a pretext for discrimination or reprisal. With regard to claim 1, the Agency found that Complainant's clock rings were entered by his supervisors. With regard to claim 2, Complainant's acting-Supervisor (S2: Caucasian, White, American) averred that Complainant was issued the LOW for unsatisfactory performance and failure to follow instructions. With regard to claim 3, Complainant's Supervisor (S1: African American, Black, American) averred that she would sometimes forget to pick up the time cards of Complainant and those of other workers from the Attendance Control Office but that her actions were not related to Complainant's protected bases.
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").
The allocation of burdens and order of presentation of proof in a Title VII case alleging disparate treatment discrimination is a three step procedure: Complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and Complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its actions. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). With regard to claim 1, S2, who was Complainant's acting supervisor on the date in question, averred that he told Complainant to fill out a form "for the days he was missing clock rings and I would provide them to his current supervisor (S1), for appropriate action. [Complainant] did not return the PS Forms 1261 to me prior to the end of his work shift." Report of Investigation (ROI), Affidavit B, p. 5. S1 further averred that she input Complainant's clock ring data on November 18, 2011 and that another named individual input Complainant's clock ring data for November 20-21, 2011. See ROI, Affidavit D, pp. 4-6. With regard to claim 2, the LOW states that it was being issued for unsatisfactory performance and failure to follow instructions. See ROI, Exhibit 7. Specifically, the LOW, signed by S1, states that "[o]n November 22, 2011 you were instructed to start feeding mail on DBCS #19 per the [Manager's] orders. You stated that [the Manager] 'can go to hell, I'm not feeding any mail.' I again advised you to begin feeding mail, you again refused adding that I can write you up I [sic] want." Id. With regard to claim 3, S1 averred that Complainant "is one of my employees that drop [sic] his timecard in box [sic] at [the Attendance Control Office] and there are times when I forget to pick up and recently I misplaced my key to get into ACO." ROI, Affidavit D, p. 13. S1 further denied that her actions were based on Complainant's protected bases or on retaliation. See id.
The Agency, having articulated legitimate nondiscriminatory reasons for its actions, the burden thus returns to the complainant to demonstrate, by a preponderance of the evidence, that the agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
With regard to claims 1 and 3, Complainant did not rebut the Agency's articulated reasons. The record shows that he was submitted a supplemental affidavit request on April 16, 2012 but he failed to respond to the request for additional information. See ROI, Affidavit A, pp. 17-32. On appeal, Complainant does not address the Agency's contention that his clock ring data was input later by management officials, or that S1's actions in not picking up Complainant's time cards were based on nothing more than forgetfulness. With regard to claim 2, Complainant denied that he was instructed to feed the mail and averred that instead the instruction was given to a White coworker, who was the one to refused the instruction. See id., p. 10. Complainant, however, did not provide any corroborating evidence, such as an affidavit from witnesses or from the coworker himself.
Following a review of the record we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its actions are pretextual, or otherwise showing that discrimination or reprisal occurred.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
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
February 14, 2013
__________________
Date
1 We note that the race, color, and national origin of the parties and witnesses are given as provided by the parties and witnesses in the Formal Complaint or during the investigation.
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01-2012-3549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123549