0120093885
08-10-2011
Roger McRoberts, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Roger McRoberts,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120093885
Hearing No. 470-2009-00112X
Agency No. 1C-451-0088-08
DECISION
On September 24, 2009, Complainant timely filed an appeal from
the Agency’s August 24, 2009, final decision concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Tide VII),
as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency’s
proffered explanation for sending him home for not following instructions
was pretext for discrimination.
BACKGROUND
On November 17, 2008, Complainant filed a formal EEO complaint alleging
discrimination on the bases of race (Caucasian), age (61), and reprisal
for prior protected EEO activity when, on September 16, 2008, he was sent
home for not following instructions from his manager. The complaint was
accepted for investigation. Thereafter, Complainant was provided with
a copy of the resulting report and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant initially
requested a hearing, but subsequently withdrew his request. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).
It its final decision, the Agency noted that Complainant
failed to establish that he was subjected to discrimination as
alleged. Specifically, the Agency noted that it articulated legitimate,
nondiscriminatory reasons for its actions. In particular, the Agency
noted, on September 16, 2008, Complainant’s manager (CM) had given
Complainant an instruction to immediately work the “hot mail”
flats before the Delivery Point Sequence (DPS) trips. The Agency noted
that Complainant responded to CM, stating that he would not work the
“hot mail” flats as instructed and could not be made to do so. As a
result, the Agency noted that CM instructed Complainant’s supervisor
that Complainant must be escorted out of the building and be placed on
emergency placement leave for that day. The Agency noted that the next day
Complainant was instructed to report back to work. The Agency noted that
Complainant failed to establish that its legitimate, nondiscriminatory
reasons were pretext for discrimination.
On appeal, Complainant contends that management’s reason for sending
him home is not credible. Complainant contends that management officials
in the instant complaint were also named as the responsible management
officials in another complaint. Complainant further contends that
management did not abide by the Employee and Labor Relations Manual
(ELM) when they sent him home. Complainant contends that his supervisor
did not want to send him home and was only following CM’s orders to
do so. Complainant also contends that he did not receive management’s
instruction to report back to work until September 18, 2008.
ANALYSIS AND FINDINGS
To prevail in a case 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). He must generally
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Co. v. Waters, 438
U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in
this case, however, because the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext for discrimination. Reeves
v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming, arguendo, that Complainant established a prima facie case of
discrimination based on race, age, and reprisal, we find that the Agency
articulated legitimate, nondiscriminatory reasons for its actions,
as set forth above. Complainant now bears the burden of proving by a
preponderance of the evidence that the Agency’s articulated reasons were
a pretext for discrimination. Complainant can do this by showing that the
Agency’s proffered explanation is unworthy of credence. Burdine, 450
U.S. at 256. Notwithstanding Complainant’s contentions, we find that
he has failed to establish that the Agency’s reasons were pretext or
motivated by discriminatory animus based on his race, age, or in reprisal
for prior protected EEO activity. Notably, Complainant does not contest
that he refused the instruction to work the “hot mail” flats before
the DPS trips, which was the stated basis for the Agency’s actions.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, and for the forgoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
affirm the Agency’s final decision.1
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 (Nov. 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
August 10, 2011
Date
1 On appeal, Complainant does not challenge the February 19, 2009,
partial dismissal issued by the Agency regarding an amended claim (that
he was subjected to discrimination based on race, age, and reprisal when
in May 2008 he was issued a letter of warning). Therefore, we exercise
our discretion to address only the issue raised on appeal. See EEO
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, §
IVA (Nov. 9, 1999).
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0120093078
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093885