0120152338
11-14-2017
Whitney G,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Whitney G,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120152338
Agency No. 4B-100-0092-14
DECISION
On June 24, 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 June 9, 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. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Maintenance, Custodial Laborer at the Agency's Franklin Delano Roosevelt (FDR) facility in New York, New York. In a memorandum, dated June 24, 2014, to the Metro Area Postmaster, Human Resources Manager (S1), and a FDR Station Maintenance Operations Supervisor (S2), Complainant inquired about his "[l]ong over-due [p]romotion & [p]romotional [s]tatus." In a letter dated July 16, 2014, S1 stated that there was no record that Complainant successfully completed a required exam or the structured interview rating process, or that Complainant had participated in the March 2012 Open Season. S1 suggested Complainant submit a written request for inclusion on the Promotional Eligibility Register (PER) to the Maintenance Coordinator (S3) or apply during the 2015 Open Season. On August 4, 2014 and August 22, 2014, Complainant sent a second and third notice, respectively, to management on the same topic.
On October 20, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic)2, national origin (Puerto Rican), age (70), and reprisal for prior protected EEO activity when:
1. Human Resources Management denied a promotion to a qualified employee (Complainant) because he disclosed information that provides evidence of violation of law, rules and regulations, and abuse of authority,
2. Human Resources Management intentionally obstructed a qualified employee (Complainant) from applying for employment and craft promotion, and
3. the Agency refused to put Complainant's name on the PER for seven craft positions - Building Equipment Mechanic PS-7, Maintenance Electrician PS-6, Maintenance Mechanic PS-4, Maintenance Mechanic PS-5, Electronic Technician ET-9/PS-9, Electronic Technician ET-10/PS-10, and Maintenance Mechanic MPE-7/PS-7.
Subsequently, in January 2015, Complainant sought to add the following issues to his complaint: denial of pay for official time on November 19, 2014 and continously, vandalism of his personal locker and equipment, charge of five minutes of leave for tardiness, and denial of a shop steward.
Investigation
The Agency accepted the following total issues for investigation:
a. on September 9, 2014, Complainant became aware that his name had not been added to the PER for seven higher level positions, per Complainant's June 9, 2014 request,
b. on November 2014, Complainant's personal locker and equipment were vandalized with some items being taken, and management took no action after being informed, and
c. on December 9, 2014, management charged Complainant with five minutes of leave without pay (LWOP) without his consent or knowledge.
The Agency dismissed Complainant's claim of denial of a shop steward pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency stated that the claim lodges a collateral attack on the negotiated grievance process. The Agency did not address official time.
During the investigation, Complainant stated that, in 2003, he completed the Agency's ten-week maintenance training program but he has not been promoted to his desired craft and his name has not been placed on the PER list. Complainant stated that the Agency has treated him disparately based on his protected classes. Further, Complainant stated that the Agency mischaracterized his claims and they should remain as he originally articulated in (1) through (3). Complainant stated that (b) is not a true allegation and he did not respond to questions related to (b) during the investigation. Instead Complainant stated that on pay period 25 of 2014, the Agency removed his official time pay and charged as annual leave, and failed to give him a pay adjustment.
As to (a), S3 stated that Human Resources forwarded Complainant's PER request to her in June 2014. S3 stated that she reviewed Complainant's history on file and applied the Maintenance Selection System (MSS) process from the EL-304 handbook. For (b), Agency management stated they were not aware of the circumstances about vandalism of Complaint's locker and property. Regarding (c), S2 stated that Complainant was scheduled to start his tour at 12:50 but he punched in at 12:59 so he was charged .09 units of leave. S2 stated that she asked Complainant what type of leave he wanted to use and he responded, "I was not late." She noted that any time over the leeway given of .08 units is considered late to complete the eight hours of work scheduled. S2 stated that she relied on ELM 665.41 pertaining to regular in attendance.
Post-Investigation
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). (The Investigator noted that Complainant failed to respond fully to (b) and (c) during the investigation.) Complainant did not make an election. On June 9, 2015, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed.
On appeal, Complainant stated that his claims are not as framed in (a) through (c), but as he articulated in (1) through (3). In his brief, Complainant stated "the Postmaster and the HR Management have none of my record, accomplishments and refuses to render me a promotion & include me in the PER list." Complainant stated that a person has to request placement on the PER list only once and not each Open Season as the Agency suggested. He stated that he requested placement on the PER list in 2000, 2003, and 2009.
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").
As an initial matter, after a review of the record, we find that the Agency's assessment of the original claim - Complainant's name has not been added to the PER list for seven higher level positions - is appropriate. Next, we find that the Agency's failure to address Complainant's claim of denial of official time/exchange for use of leave equates to a dismissal.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. For (a), the Agency informed Complainant that there was no record that he successfully completed a necessary exam or the structured interview rating process, or that he participated in the most recent Open Season. S1 suggested Complainant submit a written request for inclusion on the PER to the Maintenance Coordinator or apply during the 2015 Open Season. Further, the Agency stated that it reviewed Complainant's history on file and applied the Maintenance Selection System process from the EL-304 handbook. For (b), Complainant stated that it was not a true allegation and the Agency stated it was not aware of the circumstances about vandalism of Complaint's locker and property. For (c), the Agency stated that Complainant was .09 units late so he was charged leave accordingly. We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes.
Official Time
Complainant alleged that the Agency denied his requests for official time and instead charged him leave for the time used. The Agency did not address the issue in its final decision and, as previously stated, its failure to address is equal to a dismissal of the matter. Complainant raised the matter with an EEO counselor as part of the amendment for the instant complaint and during the investigation.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides, in pertinent part, that if a complainant is otherwise in pay status, the agency shall consider him to be on official time, regardless of tour of duty, when his presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on a complaint. The Commission has stated that a claim regarding the denial of official time concerns a violation of the Commission's regulation and does not require a determination of whether the denial was motivated by discrimination. See Edwards v. United States Postal Service, EEOC Request No. 05960179 (Dec. 23, 1996). The Commission held that such a claim should not be processed in accordance with 29 C.F.R. 1614.108 et seq., since the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Edwards, supra.
We find that the Agency improperly dismissed Complainant's claim for official time. The Commission must now determine whether Complainant was improperly denied a reasonable amount of official time to prepare his complaints. The Commission, however, cannot determine if Complainant was denied official time because the claim is vague as to the continuous dates Complainant was denied official time and for what preparations he was denied official time. Therefore, we shall remand the matter so that the Agency can contact Complainant to clarify the official time claim. After clarifying the official time matter, the Agency shall investigate Complainant's allegation and issue a determination as to whether the Agency provided Complainant with a reasonable amount of official time to prepare the relevant complaints.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision as to (a) through (c). We REVERSE the Agency's dismissal of official time claim and REMAND the matter to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall take the below actions.
1. Contact Complainant to clarify his claim regarding official time. The Agency shall determine on what dates Complainant was allegedly denied a reasonable amount of official time to prepare the complaints and to which complaints Complainant is referring.
2. The Agency shall investigate the issue of whether Complainant was denied a reasonable amount of official time to prepare the relevant complaints. The Agency shall include in the record documentation showing how much of the requested time Complainant was granted to prepare the relevant complaints.
3. Allow Complainant to place into the record any evidence supporting his claim that he was denied a reasonable amount of official time.
Within 90 days of the date this decision is issued, the Agency shall issue a decision as to whether Complainant was denied a reasonable amount of official time to prepare the relevant complaints. The Agency's decision shall provide appeal rights to this Commission. If the Agency determines that Complainant was denied a reasonable amount of official time, then it shall reimburse Complainant for any time he spent preparing his complaints that was not designated official time. A copy of the agency's decision must be submitted to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 14, 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 Complainant referred to his race as Hispanic. EEOC views Hispanic as national origin.
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