0120152336
11-08-2017
Shad L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shad L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120152336
Agency No. 4G-350-0001-15
DECISION
On June 25, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 29, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Mail Processing Clerk at the Birmingham Post Office in Birmingham, Alabama.
On November 17, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity under Title VII and the ADEA when it issued a 14-day and a 7-day suspension against him, both dated August 22, 2014, with identical charges.2
Following 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It dismissed Complainant's complaint for being moot, and in the alternative found no discrimination.
After an investigative interview with Complainant on August 8, 2014, his first line supervisor (S1) decided to suspend him, and coordinated with an Agency Labor Relations Specialist to do so. The Labor Relations Specialist stated that because Complainant had a prior "live" 14-day suspension, the next progressive discipline was removal, but S1 requested a 14-day suspension instead which she supported since the prior live suspension was scheduled for an arbitration hearing, and there was no way of knowing what the final decision would be.
On August 19, 2014, the Labor Relations Specialist emailed S1 a draft 14-day suspension notice for her to issue and Complainant to sign. Report of Investigation (ROI), Exh. 6, at 2, bates stamp 119. On August 20, 2014, the Labor Relations Specialist emailed S1 again, this time with a 7-day draft suspension notice. She wrote in the email that the 7-day notice should be issued instead of the 14-day because the prior live 14-day suspension was rescinded. ROI, Exh. 6, at 3, bates stamp 120. The Labor Relations Specialist stated that she drafted the 14-day suspension notice after checking the status of the prior live 14-day suspension, and subsequently got an update the day she sent S1 the draft 14-day suspension that the prior live 14-day suspension was rescinded.
Instead of signing only the 7-day suspension notice, S1 signed both the 7-day and 14-day notices, and hand dated them August 22, 2014. Both bear Complainant's signature, indicating he received them on August 22, 2014, at 12:15 PM. S1 explained that she intended to have Complainant sign two copies of the 7-day suspension - one for his record, one for her file. The 7-day and 14-day suspension notices look strikingly similar, and S1 observed they have the same title "NOTICE OF SUSPENSION 14 DAYS OR LESS." Complainant contends that he only received the 14-day suspension notice, and did not receive or sign the 7-day notice. He contended that S1 photocopied his signature from the 14-day notice and transferred it to the 7-day notice. S1 denied forging any signature. A close look at both signatures reveals that they are very similar but unlike a photocopy not identical.
In the suspension notices, S1 charged Complainant with failure to follow instructions. In support thereof, she listed three specifications, all occurring on August 1, 2014. They were as follows. First, when S1 came into Complainant's section at 8:05 AM, he was not there and did not return until 8:25 AM, and his flats were not up. According to the investigative interview notes, Complainant explained that the floor was shorthanded that day, he was feeling worn, faint and somewhat dizzy, and even though he knew it was beyond his normal break time, he needed to get off his feet, eat something, and take medicine. In the suspension notices, S1 countered that Complainant was responsible for Zone 1 and 2 flats, parcels, and scanning, and did make any of his coworkers or supervisor know he felt ill. The second specification was that he did not begin scanning when he arrived at 4:08 AM as instructed, and gave no valid reason for only scanning 41 pieces from 4:35 AM to 6:55 AM. According to the investigative interview notes, Complainant explained that he was going back and forth from colleges to flats, or whatever he was instructed to do. When asked why he scanned some things multiple times, Complainant responded that maybe he made mistakes - he had a bowel problem and was bending over, and added he gets dizzy and his stomach hurt. The third specification was that Complainant was responsible, when flats were complete, for scanning "Distribution Up," and initialing the "Wall Up" to indicate that the distribution scan was made. But he failed to do the initialing, causing a delay in the "Box Up," resulting it being recorded as late. According to the investigative interview notes, Complainant explained he forgot to sign the sheet, and people should have reminded him.
In his investigative affidavit, Complainant explained that he took the break in specification 1 because he got diarrhea from changing his medication for blood sugar and blood pressure, the delay in specification 2 was because there was a delay of incoming mail, and gathering and set-up of equipment, and did not initial the log in specification 3 because he did not realize this was his responsibility.
S1 countered that Complainant took an extended break without permission, thus failing to work in a timely manner, scanned only 41 pieces of mail over a 2:20 hour period, again failing to work in a timely manner, and did not sign his name to "Distribution Up" sheet after scanning even though he previously had an investigative interview for failing to follow these specific instructions.
In its FAD, the Agency dismissed Complainant's complaint for being moot. It reasoned that that via a grievance settlement, it quickly rescinded the 14-day suspension, and Complainant responded in his affidavit on compensatory damages that he suffered no financial difficulties from the 14-day suspension, thus the rescind action eradicated the effects of the alleged discrimination. In the alternative, the Agency found no discrimination. It found that Complainant did not make out a prima facie case of reprisal discrimination. It reasoned that the 14-day suspension was made more than four months after the close of Complainant's prior EEO complaint, too much time to raise an inference of reprisal, and Complainant did not show he was treated differently than others. Assuming arguendo that Complainant established a prima facie case of reprisal discrimination, the Agency found that S1 and the Labor Relations Specialist gave legitimate, nondiscriminatory reasons for Complainant getting both a 7 and 14-day suspensions. The instant appeal followed.
Complainant argues that his complaint is not moot because he continues to be harassed with unfair disciplinary actions. The record reflects that on November 10, 2014, Complainant was issued another 14-Day suspension for failure to follow instructions, which was reduced via a grievance to an Official Discussion because management cited prior discipline that was not active at the time of issuance. ROI, Exh. 8, bates stamp 124. He writes that the 14-day and 7-day notices of suspension were attached together, and reiterates his contention that S1 forged his signature and gave him the 14-day suspension even though it was not progressive discipline. Complainant writes that his prior EEO complaint involved S1.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
The Agency has not shown Complainant's complaint is moot. First, it is unclear from the record when or if the Agency rescinded the August 22, 2014 7-Day suspension. The Labor Relations Specialist stated that while Complainant settled his grievance on the 14-Day suspension, it was too late to file a grievance on the 7-Day suspension. ROI, Affidavit D at 2, bates stamp 76. Further, while Complainant indicated in his compensatory damages affidavit that he experienced no financial difficulties because of the discriminatory actions in his complaint, he advised the EEO counselor that he wanted $125,000 in compensatory damages for mental suffering. While the Agency gave Complainant an opportunity to submit evidence of his compensatory damages, he was not prompted to give information on his mental suffering. Given this, for the procedural purpose of determining whether Complainant's complaint is moot, we find that the issue of damages has not been adequately addressed.
To prevail, 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, since 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 Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We find the explanation by S1 and the Labor Relations Specialist that 14-day and 7-Day suspensions were issued simultaneously for the same conduct was inadvertent is persuasive. The explanation is consistent with contemporaneous emails by the Labor Relations Specialist to S1. We don't credit Complainant's assertion that his signature on the 7-Day suspension is a forgery. It is more likely that both S1 and Complainant believed they were both signing copies of the same document.
S1 gave legitimate, non-discriminatory reasons for suspending Complainant, which are recounted in the notices of suspension, and supported by S1's affidavit and investigative interview notes. Complainant has not shown that this explanation was pretext to mask reprisal discrimination.
The Agency's finding that Complainant's complaint is moot is REVERSED. Its finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 8, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency defined Complainant's complaint as regarding the 14-Day suspension only. But a review thereof reveals that our definition better captures his claim.
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