0120142442
07-20-2016
Victor S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Victor S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120142442
Agency No. 4G-335-0153-12
DECISION
On June 26, 2014, Complainant filed an appeal from the Agency's May 27, 2014, 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. The Commission deems the appeal timely and accepts it for de novo review. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant worked as a Labor Relations Specialist at the Suncoast District Office in Tampa. Florida. On August 7, 2012, he filed an EEO complaint alleging that his immediate supervisor, the Labor Relations Manager (LRM) retaliated against him for previous EEO activity by issuing him a letter of warning on May 4, 2012. The Agency initially dismissed the complaint, but in Complainant v. United States Postal Service, EEOC Appeal No. 0120123528 (February 28, 2013), Petition for Enforcement No. 0420130014 (December 26, 2013), the Commission reversed the Agency's dismissal and ordered the Agency to process the Complaint. At the conclusion of the investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On April 14, 2014, Complainant requested a final decision on the merits of the complaint. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), in which it concluded that Complainant failed to prove that the Agency retaliated against him as alleged.
In a memorandum dated May 4, 2012, the LRM informed Complainant that he would be issued a letter of warning in lieu of a seven-day suspension on charges of unsatisfactory performance and failure to follow instructions. The letter included a number of specifications, including an inappropriate email response to the LRM's inquiry, demonstration of what the LRM characterized as a "cavalier attitude" about processing an indefinite suspension of an employee, sending a removal letter to the Law Department without first verifying whether the subject of the letter was a preference-eligible veteran, and entering into settlement negotiations with a grievant despite being told that the grievance was untimely. The letter included detailed discussions of additional specifications, and was documented with a pre-disciplinary report describing the various incidents. Investigative Report (IR) 203-10, 227-57, 262-63.
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. (Aug. 5, 2015) (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 Commission cannot second-guess an Agency's decisions involving disciplinary actions unless there is evidence of a retaliatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). To prevail, therefore, Complainant would have to prove, by a preponderance of the evidence, that the LRM was motivated by unlawful considerations of his previous EEO activity when he issued Complainant the letter of warning on May 4, 2012. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). In circumstantial-evidence cases such as this, Complainant can establish the existence of an unlawful motivation by presenting documents or sworn testimony from other witnesses tending to show that the reason articulated by the LRM for the letter of warning was a pretext, i.e., not the real reason but rather a cover for reprisal. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253.
When asked why he believed that the LRM issued him the letter of warning in retaliation for his previous EEO activity, Complainant replied that the LRM had placed him on a performance improvement plan (PIP) after denying his repeated requests for religious accommodations. The PIP was later changed to an individualized development plan by the Human Resources Manager, the LRM's immediate superior. Complainant also pointed out that the LRM issued the letter of warning one day after the investigator in his earlier case sent the LRM a request for his affidavit. IR 156-157, 164. Beyond his own testimony, however, he has not presented sworn statements from other witnesses or documents that contradict the explanation for the letter of warning provided by the LRM or which call the LRM's veracity into question on the crucial issue of retaliatory motivation. We therefore find, as did the Agency, that Complainant has not satisfied his burden of proof of retaliatory intent on the part of the LRM in connection with his issuance of the letter of warning.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
7/20/2016
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.
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