0120170518
08-10-2018
Arnulfo T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arnulfo T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120170518
Agency No. 4K200004316
DECISION
On November 15, 2016, 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 November 2, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that he was discriminated against based on race (unspecified) and disability (Attention Deficit Disorder) when, on December 29, 2015, he was placed in an off-duty non-pay status; and, on January 27, 2016, he was issued a Notice of Removal for Unsatisfactory Work Performance/Mishandling of Postal funds.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a PSE Sales and Services Associate, PS-6 at the Agency's Washington Main Office facility in Washington, DC. He was assigned to handle financial transactions. On December 24, 2015, Complainant processed an advance deposit. The transaction resulted in his drawer being short $800.00. Complainant told the EEO counselor that he was confused and began to look for the money. He stated that he found it in "the till" and immediately gave it to his supervisor. Four days later, on December 28, 2015, another shortage occurred regarding Complainant. His supervisor approached him about the missing funds. The funds were located an hour later in another location. Complainant stated that he had again mistakenly made an advance deposit instead of a close out.
The Agency conducted an investigation which revealed a number of issues regarding Complainant's handling of money. This included the following:
1. a December 2, 2015, cash shortage;
2. a Final Deposit Slip, dated December 24, 2015, which indicated that the Supervisor did not receive an $800.00 advance deposit;
3. a PS Form 3544, receipt for money, dated December 29, 2015 showing Complainant had an overage of $50.82, and
4. a Letter of Demand for Indebtedness for Employee Accountable Shortage dated November 21, 2015 showing the Agency sought to collect $2,496.85 from Complainant.
On December 29, 2015, Complainant was placed in an off-duty non-pay status. On January 27, 2016, Complainant was issued a Notice of Removal (NOR). Complainant stated that he received the NOR for allegedly having missing money. He stated that the NOR did not state that he "stole the money, but Management assumed he stole money." He stated that he informed his supervisors that he had ADD and requested "to come off his window duties." Complainant stated that "others have had missing money."
A-1, Complainant's supervisor, stated that Complainant had several shortages with his cash drawer that could not be explained, with the last being two days in a row which caused shortages totaling about $3000. She averred that Complainant had training in the classroom and on the job training for this position. A-1 indicated that Complainant was placed on emergency placement for mishandling funds, and that his race and medical condition were not factors with this placement.
A-2, the manager, stated that Complainant when questioned about the missing funds acted like he did not know where the money was and looked for it with B-1, another supervisor, in his drawers and it was not there, but once B-1 left he stated that he found it in the same drawer that was previously searched. He maintained that the question of theft was communicated and their findings discussed with Complainant. A-2 stated that after the findings of the investigations that took place in November 2015 and December 2015, there was nothing Complainant could have done to prevent the issuance of the NOR and his race and medical condition were not factors in this decision.
On May 10, 2016, Complainant filed an EEO complaint alleging discrimination as set forth above in the Issue Presented section. Complainant was asked to provide an affidavit, but failed to do so. 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.
CONTENTIONS ON APPEAL
On appeal, Complainant submitted a statement dated January 8, 2016, from an individual who was "covering" for a Johns Hopkins physician. The statement indicates that Complainant had been diagnosed with Attention Deficit Disorder. Complainant submitted no other statement or comments.
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").
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). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and disability, the Agency provided legitimate non-discriminatory reasons for why Complainant was placed in an emergency off-duty status and subsequently issued a notice of removal. We also find that Complainant did not establish that the Agency's explanations were pretext for discrimination. Complainant did not provide any persuasive evidence that his race or disability played any role in these matters.
To the extent that Complainant is alleging that he was denied a reasonable accommodation because management did not reassign him due to his disability, we find no evidence that such an accommodation was ever requested by Complainant. The fact that he was treated for ADD does not indicate that he needed an accommodation. Moreover, we find no evidence that management was aware of Complainant's condition.
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 FAD.
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
__8/10/18________________
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
0120170518
5
0120170518