01A05700
02-07-2002
Alexander Medrano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Alexander Medrano v. United States Postal Service
01A05700
February 7, 2002
.
Alexander Medrano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01A05700
Agency No. 4-G-770-0549-97
Hearing No. 330-99-8068X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
(FAD), dated July 19, 2000, concerning his complaint of unlawful
employment discrimination on the bases of sex (male), age (DOB 4/6/45),
disability (ankle injury and diabetes), and reprisal (prior EEO activity),
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq.; the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq.; and the Rehabilitation Act
of 1973,<1> as amended, 29 U.S.C. �791, et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
Whether the complainant was discriminated against on the bases of his sex,
age, disability, and/or retaliation when on April 24, 1997, complainant
was issued a seven-day suspension without just cause.
BACKGROUND
In Medrano v. USPS, EEOC Appeal No. 01980619 (August 21, 1998),
the Commission found that the agency improperly refused to amend the
allegations accepted for investigation to include an allegation raised
by complainant during counseling. The record revealed that during
counseling, and in his formal complaint, complainant alleged that he
was subjected to discrimination on the above referenced bases when: (1)
management issued complainant a second suspension after failing to have
him serve his first suspension, thus causing his suspensions to overlap;
(2) management failed to timely respond to complainant's grievance;
(3) management denied complainant his request for Modified Article 16
proceeding<2>; and (4) management issued complainant a suspension without
just cause.
By letter dated September 9, 1997, the agency identified the issues to be
investigated as allegations (1) through (3) above. The letter informed
complainant that if he disagreed with the identified issues he should
submit, in writing, his objections within seven (7) days of its receipt.
On September 22, 1997, complainant's representative responded with a
letter objecting to the agency's exclusion of allegation (4) from the list
of issues to be investigated. On October 17, 1997, the agency issued
a final decision refusing to amend its definition of the allegations
to be investigated to include allegation (4). The Commission found
that the record clearly indicated that complainant included allegation
(4) in his formal complaint, and raised the matter during counseling.
The Commission further found that the agency's decision not to investigate
this allegation during the investigative phase of complainant's complaint
was in error. The Commission determined that the agency's decision
was improper and reversed. Allegation (4) was remanded to the agency
for further processing.
On September 10, 1998, the agency issued its acceptance for investigation
of allegation (4). The investigation revealed that the complainant,
at all relevant times, was employed as City Letter Carrier, PS-05,
at the agency's North Shepherd Station in Houston, Texas. Concerning
allegation (4), complainant stated that the suspension was not for
just cause. The record reflects that complainant was involved in a
rear end vehicle accident on March 14, 1997, when he ran into the back
of a heavy duty wrecker. Complainant explained that he was distracted,
while driving across an intersection, by school children running toward
the intersection. Complainant stated that he thought the children
were going to run across the street. When the vehicle in front of the
complainant made a sudden stop, complainant hit the back of the wrecker.
A supervisor from the agency came to the accident scene and investigated
the accident. The investigator concluded that complainant was at fault
for the accident for failure to control his vehicle.
On April 16, 1997, complainant was issued a Notice of Seven-Day Suspension
which stated that complainant was involved in a preventable vehicle
accident due to complainant's inattentiveness and failure to control
his vehicle. The Suspension was from May 12, 1997 to May 18, 1997.
The Notice of Suspension notified complainant of his right to file a
grievance under the grievance arbitration procedure of the National
Agreement within fourteen (14) days of complainant's receipt of the
notice. When complainant worked on May 12, 1997, the agency issued
a second notice setting May 17, 1997 through May 23, 1997 as the new
dates for the seven-day suspension. Complainant served his suspension.
Complainant testified that he appealed the suspension and asked for a
Modified 16 proceeding. Complainant testified that he understood that
he had to file a timely Step 1 grievance before he could be granted a
Modified 16 proceeding.
The Supervisor of Customer Service (S) (female), who issued the Notice
of Suspension, testified that the suspension was issued to complainant
because he had a preventable vehicle accident. S testified that
all employees who have a preventable vehicle accident are issued a
seven-day suspension. S testified that complainant was issued a second
notice of the dates of the suspension when he worked the first day of the
suspension dates. S testified that complainant was not given a Modified
16 proceeding because complainant did not file a Step 1 grievance.<3>
S testified that the union did not present a Step 1 grievance. S also
testified that she was unaware of complainant's prior EEO activity and
was unaware of any disability concerning complainant. S testified that
complainant's suspension was not handled differently than anybody else's.
S testified that complainant never had a Step 1 grievance with complainant
or his representative. S testified that complainant never spoke to her
about a grievance or a Modified 16 proceeding. S testified that if the
union filed a grievance, it was untimely because it was requested more
than 14 days after the first notice of suspension. S testified that
the date the union claims a Step 1 was held was May 16, 1997, and that
the Suspension was issued April 24, 1997. S also testified concerning
comparison employees who were issued notices of suspension.
The AJ hearing was held on October 6, 2000. On April 10, 1999, the AJ
issued an Authorization for Appearance of Witnesses. The Authorization
provided that the agency shall make its employees available as witnesses
at a hearing when requested to do so by the AJ. A Union Steward
(US) was listed as a witness but when called at the hearing by the
complainant was not present. The AJ inquired of the agency's Labor
Relations Specialist (LRS), who was the agency's representative at the
trial, if US was notified. The LRS presented to the AJ a September
20, 1999 letter to the Station Manager (SM) which advised that the
complainant and the witness needed to be at the hearing, and that the
SM was to notify the complainant and US to appear on October 6, 1999.
At the hearing there was a discussion as to whether US had the day off
or would be working his non-scheduled day. Complainant's representative
(CR) motioned for an adverse inference and tendered that US would have
testified as an expert witness as a steward and would have given testimony
concerning the comparators' discipline, and that it was common knowledge
that comparator carriers never served their suspensions. The CR tendered
that US would have also testified that US helped complainant with his
grievance, that complainant requested a timely Modified 16 proceeding,
and that complainant had talked to a supervisor about it.
Concerning age and sex discrimination, the AJ concluded that the
complainant failed to establish a prima facie case of sex and age
discrimination. But for purposes of further analysis, the AJ assumed,
arguendo, that complainant established a prima facie case and found
that the agency articulated legitimate, nondiscriminatory reasons for
its action. The AJ found that the complainant failed to demonstrate that
similarly situated employees not in his protected classes, were treated
differently under similar circumstances, when complainant was suspended,
and had to serve his suspension, unlike other career employees, who did
not have to serve their suspension. The AJ also found that the agency
produced evidence that the complainant failed to make a timely Step 1
grievance in accordance with the agreement between the agency and the
letter carriers union.
The AJ also concluded that complainant failed to establish a prima
facie case of disability or reprisal discrimination. The agency's FAD
implemented the AJ's decision. For the following reasons, the Commission
affirms the FAD.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when he found that the
complainant failed to offer proof concerning other employees who, under
similar circumstances, never served their suspensions. Complainant further
contends that the AJ erred in not granting an adverse inference as to US's
tendered testimony. Complainant filed with his appeal a signed statement
from US which states that he was willing to testify as a union steward
and expert witness. Also, US stated that he was available to testify
on the day of the hearing and willing to testify at any future hearings.
The agency did not file a response to the complainant's appeal.
ANALYSIS AND FINDINGS
Initially, the Commission reviews the failure of US to attend and testify
at the hearing, in light of the fact that the agency's representative,
LRS, was not able to explain the absence of US. The Commission notes
that 29 C.F.R. �1614.109(e), states that "Agencies shall provide for
the attendance at a hearing of all employees approved as witnesses by
an administrative judge.� Further, EEOC Management Directive (MD)110,
as revised, November 9, 1999, states that the agency must ensure that
all approved witnesses who are federal employees are notified of the date
and time of the hearing and the approximate time that their presence will
be required and the agency is responsible for ensuring the appearance of
approved witnesses who are federal employees. (Chap. 7,II, B, 7-3) The
record does not reflect that the agency complied with this requirement.
When an approved witness within the agency's control fails to appear, the
burden is on the agency to demonstrate that there was good cause for the
failure. Wienecke v. Department of Health and Human Services, SSA, EEOC
Appeal No. 01941659 (May 2, 1995). The agency did not meet its burden to
demonstrate that there was good cause for the failure of US to appear.
However, any error by the AJ in not determining the agency's reason for
failure to produce the witness, or in not granting complainant's request
for adverse inference, is harmless, for the reasons set forth below.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). The Commission also notes that the credibility
determinations of the AJ are entitled to deference due to the AJ's
first-hand knowledge, through personal observations, of the demeanor
and conduct of the witnesses at the hearing. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
Disparate Treatment
A. Sex and Age
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the
sense that "but for" age, complainant would not have been subject to
the adverse action at issue). Complainant has the initial burden of
establishing a prima facie case of discrimination. A prima facie case
of discrimination based on sex or age is established where complainant
has produced sufficient evidence to show that: (1) he is a member of a
protected class; (2) he was subjected to an adverse employment action;
and (3) similarly situated employees outside his protected class were
treated more favorably in like circumstances.
For the 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. McDonnell
Douglas, 411 U.S. at 802. Throughout, complainant retains the burden of
proof to establish discrimination by a preponderance of the evidence.
It is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine, 450
U.S. 248(1981). After the agency has offered the reason for its action,
the burden returns to the complainant to demonstrate, by a preponderance
of the evidence, that the agency's reason was pretextual, that is, it was
not the true reason or the action was influenced by legally impermissible
criteria. Burdine, at 253; St. Mary's Honor Center v. Hicks, supra. at
502. 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. 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).
The AJ found that complainant was charged by the agency with
unsatisfactory safety performance because complainant was involved in a
preventable vehicle accident. The AJ determined that the agency found
that complainant caused the accident due to his inattentiveness and
failure to control his vehicle. The AJ found that the agency issued
a seven-day suspension commencing May 12, 1997, but that complainant
arrived at work that day, so the agency issued a second notice on May
13, 1997, which stated that the suspension would begin on May 17, 1997.
The AJ found that the complainant claimed that a timely Step 1 grievance
was held on May 16, 1997, and a Step 2 meeting was held on May 23, 1997.
The AJ found that the agency denied that a Step 1 grievance was held,
and even if one was filed on May 16, 1997, it was untimely since it
was not filed within 10 to 14 days of the first notice of suspension.
The AJ noted that although complainant claimed that the first notice
was canceled and reissued on May 13, 1997, thereby making the Step 1
grievance timely, the AJ found that the second notice merely modified the
suspension date and did not nullify the original Notice of Suspension,
and therefore any request for a grievance was untimely because it was
requested more than 14 days after the first notice of suspension.
The AJ held that complainant failed to demonstrate that similarly situated
employees not in his protected classes were treated differently under
similar circumstances when all employees in the comparisons involved in
preventable accidents were issued suspensions. The AJ also determined
that complainant did not offer evidence that other employees did not
undergo some type of grievance procedure which affected discipline.
On appeal, complainant contends that he had no opportunity to prove
his prima facie case of discrimination in that his witness, US,
did not testify about the grievance procedures or the comparators.
Complainant reiterates his argument that he was treated less favorably
than others in that he was not afforded a Modified 16 proceeding and he
had to serve his seven-day suspension.
These assertions are an impermissible collateral attack in the EEO process
on the agency's processing of complainant's grievances, and need not
be considered. See Koch v. Securities and Exchange Commission, EEOC
Appeal Nos. 01962676 and 01965642 (Mar. 6, 1997). To the extent that
US would have testified concerning other employees, who were initially
issued a suspension, but who did not have to serve the suspension, such
evidence would basically show comparators had different circumstances
surrounding their cases, namely that they timely filed a grievance.
The Commission has examined complainant's arguments relating to the
outcome of the grievance procedure, and concludes that his arguments
are tantamount to a collateral attack on the grievance procedure.
Complainant, in effect, is attempting to change the outcome of the
grievance process by attacking, in the EEO process, the decision of
the agency, that his grievance was untimely. When a complainant is
dissatisfied with the outcome of the grievance process, the proper remedy
is within the appellate structure of the grievance process. We find that
it is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred in the union grievance process.
Upon review of the record, the Commission finds that the agency issued
complainant the Notice of Suspension based upon his causing of a
preventable accident. We also note that complainant did not dispute
his involvement in the incident. The evidence of record indicates
that complainant's causing of the accident constitutes a legitimate,
nondiscriminatory reason for issuing the Notice of Suspension.
The burden returns to complainant to show that the agency's reasons
were pretext for discrimination. Complainant indicates that the
agency's policy of suspending employees involved in preventable vehicle
accidents is inconsistent and discriminatory because employees, after
grievance procedures, did not serve their suspensions. However, the
record reveals that all employees in preventable accidents are issued
a Notice of Suspension, which constitutes equal discipline. And the
fact that employees, after a grievance proceedings, have a reduction in
discipline, does not show disparate treatment, since complainant did not
timely request a grievance proceeding. Complainant has not demonstrated
that the agency's actions were pretextual. The Commission finds that
complainant failed to establish that the agency's actions were more
likely the result of discriminatory animus toward his sex or age than
due to the reasons articulated by the agency.
DISABILITY
In order to prove a prima facie claim of discrimination under the
Rehabilitation Act, a complainant must first meet certain requirements
under the Act. In order to establish a prima facie case of disability
discrimination, complainant must prove, by a preponderance of the
evidence, that he was treated differently than individuals not within his
protected group, or that the agency failed to make a needed reasonable
accommodation, resulting in adverse treatment of complainant. See Sisson
v. Helms, 751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846
(1985).
As a threshold matter, complainant must establish that he is a "qualified
individual with disability" within the meaning of the Rehabilitation Act.
The Act's implementing regulation defines "individual with disability" as
a person who has, has a record of, or is regarded as having a physical or
mental impairment which substantially limits one or more of that person's
major life activities: self-care, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. ��
1614.203(a)(1), (3). The regulation defines a "qualified individual with
disability" as a person "who, with or without reasonable accommodation,
can perform the essential functions of the position in question without
endangering the health and safety of the individual or others . . . "
29 C.F.R. � 1614.203(a)(6).
Complainant testified that he had a right ankle problem, sugar diabetes,
and high blood pressure. Complainant also testified that he had carpal
tunnel. Complainant testified that he used a vehicle with power steering,
and he had a walking restriction. Complainant testified that management
was aware of these conditions. Assuming arguendo, that complainant is
an individual with a disability, the burden of production then shifts
to the agency to articulate a legitimate, non-discriminatory reason for
the adverse employment action. The record and testimony indicated that
complainant was issued a suspension for having a preventable vehicle
accident and that his grievance request was untimely. In order to
satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. The accident and complainant's
failure to timely request the grievance procedure were unrelated to his
medical conditions. Complainant did not provide sufficient evidence
in support of a disability claim. Complainant has not established a
causal relationship between the agency's action and the complainant's
disabilities. Further, on appeal, no contention concerning a disability
claim or accommodation claim has been raised.
REPRISAL
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination. To establish a prima
facie case of reprisal discrimination, the complainant must show that
(1) he engaged in prior protected activity, (2) the acting agency
official was aware of the protected activity, (3) he was subsequently
disadvantaged by an adverse action, and (4) there is a causal link between
the protected activity and the adverse action. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.,
411 U.S. at 802 (1973)).
We additionally note that the statutory retaliation clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. A violation will be found if an employer retaliates against a
worker for engaging in protected activity through threats, harassment in
or out of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by that individual or other employees
The AJ found that the complainant had filed an EEO complaint against
one of his supervisors but the complainant never testified that his
supervisor at the time of the suspension, S, was aware of his protected
EEO activity. S testified that she was unaware of any prior EEO activity.
S also testified that the reason complainant was suspended was because he
was in a preventable accident. We find that the third element has been
satisfied in that the agency issued complainant a Notice of Suspension.
It is therefore clear that petitioner has met the first and third
criteria, but not the second element. Furthermore, concerning the
fourth criteria, complainant did not establish a causal link between the
protected activity and any adverse action. Also, the record does not
establish the existence of a retaliatory motive. A review of the record
establishes that complainant failed to present sufficient evidence that
any agency action was in retaliation for complainant's prior EEO activity.
There was substantial evidence in the record to support the AJ's findings
and conclusions on reprisal discrimination.
CONCLUSION
We note that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's age,
sex, or disability. The Commission finds that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 7, 2002
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
February 7, 2002
Date
______________________________
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Under Modified Article 16 of the union agreement, an employee who is
issued a proposed action and who files a grievance regarding a proposed
action e.g., removal, will remain on the job or on the clock until the
exhaustion of the grievance/arbitration process.
3 An employee is not required to file a Step 1 grievance, unless the
employee wants to request a Modified 16 proceeding.