0120123278
01-24-2013
Scott Eades, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Scott Eades,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120123278
Hearing No. 450-2012-00078X
Agency No. 4G-752-0204-11
DECISION
Complainant filed an appeal from the Agency's July 13, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible Carrier at the Agency's Long View Post Office facility in Long View, Texas.
On July 6, 2011, Complainant filed an EEO 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 March 24, 2011, he was placed off the clock - Emergency Placement
2. On March 25, 2011, his supervisor charged him Absence Without Leave (AWOL);
3. On April 14, 2011, his supervisor did not allow him to begin his tour early; and
4. On May 3, 2011, the Agency had not paid him in accordance with the grievance settlement.
In a July 18, 2011 letter, referenced as "Partial Acceptance/Partial Dismissal of Formal EEO Complaint," the Agency dismissed claims one and four (Emergency Placement on March 24, 2011 and the non-payment per the grievance settlement) as collateral attacks. The Agency reasoned that it was inappropriate for Complainant to raise challenges to issues that were the subject of the grievance process. The Agency accepted the other two claims for investigation.
The pertinent record shows that Complainant has prior EEO activity, which was known by the three management officials named in the instant action.
Claims One, Two and Four
As further background, the record shows that, on March 24, 2011, the Acting Supervisor (S1) informed Complainant that he was placing Complainant in Emergency Placement status for insubordination and disruptive behavior. After a heated discussion, S1 placed Complainant off the clock and ordered him to return to work the next day. During the interchange, Complainant told S1 not to talk with him and Complainant raised his hand, as if to block the conversation. Complainant states that he did not hear S1 tell him to return to work. The record contains affidavits from witnesses stating they heard S1 tell Complainant to report. When questioned about the incident, as reflected in the interview notes dated March 30, 2011, Complainant was asked "If you did not hear[S1] speaking to you, then why did you put your hand up to the side of your face as if you were trying to block him out." Complainant responded, "I saw how [S1] was going to handle it, so I didn't want to hear anything else he had to say." When Complainant did not report for duty on March 25, 2011, management charged Complainant with AWOL.
Complainant filed a grievance on the matter of his being placed off the clock and charged with AWOL. These matters were subsequently settled. Further, on April 11, 2011, Complainant requested a hearing in connection with one of his prior complaints, Agency Number 4G-752-0404-10, which is now before us on appeal in Scott A. Eades v. United States Postal Service, EEOC Appeal 0120120568.
Claim Three
On April 24, 2011, Complainant requested permission to start his tour fifteen minutes early. The record shows that his new supervisor (who is not named in this action) denied the request. She did not permit anyone, including Complainant, to start early because the start time was 7:45 AM and the supervisor was following the set schedule for everyone. The record does not show any deviation from the 7:45 AM schedule on April 14, 2011. She testified that she was not aware of his prior EEO activity. Complainant disputes that the new supervisor was unaware of his EEO activity.
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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its Final Agency Decision, the Agency found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that Complainant failed to establish a prima facie case, and, assuming that he had, the Agency concluded that he did not show that the Agency's stated reason was a pretext for discrimination.
This appeal followed.
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").
On appeal, Complainant contends that the Agency erred in dismissing claim one (pertinent to the March 24, 2011 placement off the clock) because the issue of retaliation was not addressed in the grievance procedure. While he does not dispute that the parties entered into a settlement agreement on the matter and that he received consideration, he maintains that his allegations do not constitute a collateral attack on the grievance process.
We disagree; and we find that Agency properly dismissed claims one and four for failure to state a claim. In addition, we note that Complainant does not address the Agency's decision on the merits on the two accepted claims.
Title VII at Section 717(a) requires that all employment actions be made free from discrimination, including reprisal. In a reprisal claim, 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 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). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
Complainant must first establish his prima facie claims to shift the burden to the Agency to rebut the presumption established by the prima facie case by articulating a legitimate, nondiscriminatory reason for its actions. The record does not show that those with no prior activity were treated any better than Complainant with regard to the issues pending before us. It is undisputed that Complainant did not report for duty and was charged AWOL. It is also undisputed that the supervisor adhered to a 7:45 AM start time for all employees when she denied Complainant's request to start his tour earlier. In short, Complainant did not identify anyone who received better treatment than the Agency provided to him.
For purposes of our analysis, however, we will assume that Complainant established the elements of his prima facie case of reprisal.
Next, we find that the Agency met its burden of production. The Agency provided a specific, clear, legitimate and individualized explanation that provided an opportunity for Complainant to satisfy his ultimate burden of proof of pretext. The Agency met its burden because the Agency articulated its reasons why it charged Complainant AWOL and denied his request o begin his tour early. The Agency's stated reasons were: 1) Complainant was placed on AWOL after he did not report for duty as instructed; and 2) the supervisor denied him permission to start early because that was inconsistent with start time that applied for everyone. There is no evidence that these reasons are a pretext for any discrimination or reprisal.
Reviewing the record as a whole, we find that the preponderance of the evidence supports the Agency's finding of no discrimination.
Accordingly, the Commission AFFIRMS the Agency's final decision.
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 tends 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
January 24, 2013
__________________
Date
2
0120123278
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123278