Alonso T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20180120170938 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alonso T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120170938 Hearing No. 560-2014-00384X Agency No. 6F000000114 DECISION On January 24, 2017, 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 December 30, 2016, 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 the Agency’s final decision. ISSUES PRESENTED Whether Complainant established that he was discriminated against based on national origin (Mali), age (62), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, when he was issued a Notice of Removal. 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. 0120170938 2 BACKGROUND On March 31, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Mali), age (62), and reprisal. At the time of events giving rise to this complaint, Complainant worked as a Computer Programmer Analyst, DCS-22 at the Agency’s St. Louis Solutions Center facility in St. Louis, Missouri. On January 3, 2014, Complainant was issued a Notice of Removal (NOR). Complainant stated that he was told by A1, his immediate supervisor, that the NOR was issued to him because he had been leaving work before his scheduled leave time. A1 stated that he gave Complainant a clear directive that his work hours were between 6:00 AM to 4:30 PM, Monday, Tuesday, Thursday and Friday. Complainant’s clock rings from October 31, 2013 to December 20, 2013 show that he consistently worked this shift time, with a few exceptions when he worked eight hour shifts due a holiday in that week. However, Complainant’s badge swipes show that he left work before his scheduled end tour every day from November 1, 2013 to December 20, 2013, cutting his shift short between 4 minutes to 44 minutes. On December 20, 2013, A1 testified that he was originally alerted to Complainant leaving early when a co-worker attempted to find Complainant the previous day on December 19, 2013. According to A1, the senior analyst had gone to Complainant’s desk at 4:20 PM to ask Complainant a question. A1 maintained that the co-worker could not find Complainant, and he left a note and an email, asking him to contact him before he left for the day. A1 stated that Complainant did not contact the co-worker before the end of the day on December 19, 2013. A1 testified that he then gave Complainant “a Day in Court” to explain his absence. During the day in court, Complainant stated that he worked his full shift on December 19, 2013. A1 maintained that he then pulled the badge swipes for December 19, 2013, and found that Complainant’s badge swipe indicated he left approximately thirty minutes early. A1 testified that he then tried to discuss his findings with Complainant, to give him another “Day in Court,” but was unable to locate him, because he had again left work early. An examination of Complainant’s badge swipe indicates that he left his workroom area on December 20, 2013 at 2:59 PM, which according to A1, was thirty minutes prior to his scheduled time off with an hour of approved leave time. When asked by A1 whether he left work early on December 20, 2013, Complainant stated that he did not remember. Complainant stated that he did not dispute the facts, but he disputed the times. Complainant was charged with Unauthorized Absence from Work and Failure Work Full Tours of Duty. Subsequently, the NOR was issued, effective February 1, 2014. Complainant objected to the NOR. Complainant, with regard to leaving early, stated that he was known to be an “early bird” and would arrive well before his starting time. He claimed that he received the NOR because management asked him to attend Employee Assistance Program counseling, and he filed a grievance. According to Complainant, after filing the grievance, his relationship with A1 changed. A1, according to Complainant, began to restrict his work hours and he was not allowed on the workroom floor before 6:00 AM or after 4:30 PM. 0120170938 3 He also stated that his union representative in a prior grievance advised him that badge swipes to gauge work hours “was inadmissible.” Complainant also averred that on another occasion A1 asked him if he (Complainant) was going to retire. A1 denies that Complainant’s national origin, age, and prior EEO activity was considered in the decision to issue the NOR. On January 10, 2014, a Step 1 grievance settlement was negotiated by the Union on behalf of Complainant, but it was never signed. The grievance settlement would have reduced the NOR to a three week off-the-clock suspension, and Complainant would have been able to return to work on February 3, 2014. After the negotiations, Complainant turned down the offer. A1 stated that Complainant then retired “on his own volition.” Complainant stated, however, that he was forced to accept retirement to avoid losing his retirement benefits, and stated that he was told that after retiring it was too late to rescind his “retirement submission.” Complainant maintained that he was constructively discharged. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ dismissed the hearing request on the grounds that Complainant failed to comply with discovery and failed to respond to a Show Cause Order. The AJ remanded the matter to the Agency for a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision issued by the Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. CONTENTIONS ON APPEAL Complainant discussed a number of matters on appeal, among other things, his failure to be promoted over the years despite his being considered a good worker, accusations that he could not “understand, verbal or written English,” and his belief that he should never have received a NOR because he worked the full schedule of hours because he came to work early. The Agency reiterated its contention that Complainant did not adhere to his assigned and established work hours and consistently left work before his mandated time to leave. 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”). 0120170938 4 To prevail in a disparate treatment claim, absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin, age, and reprisal, the Commission finds that the Agency presented a legitimate, non-discriminatory reason for its actions in providing Complainant with a NOR. Complainant was required to work from 6:00 AM to 4:30 PM. Complainant failed to prove that he was complying with the tour of duty work hours established by the Agency. Complainant engaged in a pattern of leaving his workplace early despite discussions with his Supervisor about his official work hours. A review of Complainant’s badge swipes showed repeatedly and consistently that Complainant left work before the time he was scheduled to leave. The burden shifts to Complainant to rebut those reasons or demonstrate that the reasons stated by the Agency are a pretext for discrimination. Complainant must prove by a preponderance of the evidence that he was discriminated against based on his national origin, age and/or reprisal for engaging in prior EEO activity. Mere uncorroborated assertions and conclusory allegations are insufficient. We find no persuasive evidence that Complainant was issued the NOR for discriminatory reasons. Complainant maintained that his leaving early should have been excused because he came to work early. However, he indicated that A1 restricted his hours on the floor to his tour of duty time; therefore, coming in early was not an option for him. Complainant did not establish that A1’s decision was due to his age, national origin, or prior EEO activity. Further, Complainant averred that other similarly situated co-workers engaged in the same practice of leaving early. However, despite an opportunity to conduct discovery, Complainant failed to provide evidence of record that other employees were engaged in leaving early, were similarly situated in that they consistently left work earlier than their tours and/or were treated more favorably. Finally, because we find that Complainant has not established that he was subjected to discrimination, we find that a constructive discharge claim must also fail.2 2 With regard to the matters raised by Complainant on appeal, if he believes that he was subjected to discrimination regarding matters that were not included in his formal complaint, for example, not being promoted or harassment based on his written or verbal use of English, he should contact an EEO counselor. 0120170938 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 0120170938 6 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 October 31, 2018 Date Copy with citationCopy as parenthetical citation