0120152607
03-04-2016
Chadwick S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chadwick S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120152607
Agency No. 4J-481-0003-15
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 22, 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.
BACKGROUND
In July 2014, Complainant was hired as a City Carrier Assistant at the Agency's Alma, Michigan Post Office, subject to a 90-day probationary period.
On January 16, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American) and sex when:
1. in August, September and October 2014, he was given reduced work hours;
2. in September and October 2014, he was not paid for mileage; and
3. on October 6, 2014, he was terminated from Agency employment.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on June 22, 2015, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not establish a prima facie case of race and sex discrimination. The Agency further found that, assuming Complainant had established a prima facie case of discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
The instant appeal followed. Complainant submitted no argument on appeal.
ANALYSIS AND FINDINGS
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 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).
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).
The record reflects that in regard to claim 1, Complainant alleged that he was only scheduled to work for four hours per day from August 23, 2014 to September 5, 2014, September 6, 2014 to September 19, 2014, September 26, 2014 to October 3, 2014, and October 4, 2014 to October 17, 2014. He asserted that other employees in his position were provided with more hours. Complainant stated that, when he asked about it, the Postmaster informed him that because the office was overstaffed and he had no seniority, his hours were reduced.
The Postmaster stated that for a City Carrier Assistant, "there is no guarantee of work hours, and the scheduling of work hours depends upon productivity." The Postmaster further stated that Complainant's work hours were reduced because "we had issues with the Complainant's productivity. He was not meeting the expected base street times for the route, and he was taking longer than required for the route. The Complainant was also having misdelivery issues. He was delivering packages to the wrong house or the wrong address." He said that Complainant was informed of these issues when they occurred. Furthermore, the Postmaster stated, "we did try to get the Complainant additional work hours in other offices."
The Acting Supervisor of Customer Service stated that during the relevant period she was Complainant's supervisor. The supervisor stated that Complainant was not given 40 hours "because we did not have the work hours available, but we had other issues with him. We provided the Complainant with extra training, but he was not meeting the base street time, there were customer complaints of mis-deliveries, he was seen driving fast while on mounted delivery, smoking on the route while delivering mail, and he left the LLV running while delivering parcels."
Regarding claim 2, Complainant alleged that within one month of the time he started working at the Alma Post Office, he was sent to five different cities to work, but the Postmaster never made him aware of mileage pay. Complainant further stated that he never received mileage pay for traveling to other stations to work.
The Postmaster stated that there are two ways of reimbursing an employee for mileage: pay the employee by the clock for travel time or the employee can file an E-travel claim. The Postmaster further stated that if Agency management requests or requires a City Carrier Assistant to work in another office, "we are obligated to pay the employee the difference between the miles to the other facility and the mileage normally driven to the assigned location to work."
The Postmaster stated that in the instant case, Complainant "never came to me requesting pay for mileage. Had he come to me, I would have sat him down and helped him get access to the E-travel system." The Postmaster stated, "if we owe him money, then we would try to get him paid properly. Determining how he can be paid now that he is no longer employed is the difficult part. I would need to research how to pay him."
Regarding claim 3, the Postmaster stated that on October 6, 2014, Complainant was terminated during his probationary period because of unsatisfactory work performance. The Postmaster stated that there was a 90-day review period for City Carrier Assistants in which they are evaluated on day 30, 60 and 90. The Postmaster stated that the factors considered when terminating a City Carrier Assistant during the probationary period include dependability, work quality, work quantity, work methods and personal conduct.
The Postmaster stated that on August 23, 2014, Complainant was transferred to the Alma Post Office from the Dearborn Post Office, and that he conducted Complainant's 60-day review wherein Complainant received unsatisfactory ratings for all factors except for work quantity and work relations. The Postmaster further stated that he gave Complainant "a final evaluation on day 89 when I issued the termination letter to him." Specifically, the Postmaster stated that Complainant's termination was based "strictly on his work quality and work quantity, which were both unsatisfactory. He was also conducting himself in an unprofessional manner with other Carriers."
Complainant named two other City Carrier Assistants (Caucasian female and Caucasian male) who he claims were treated more favorably because they were provided with eight hours of work per day and never forced (they were "asked") to work at other locations. Complainant stated that he observed that the female comparator was struggling with her work performance. However, the Postmaster disputed this and stated the comparators received more hours because they were quicker and more efficient than Complainant. He also stated that Complainant was the most junior employee, so when there was a need to work in another location, he was sent when the more senior employees did not go voluntarily. The Postmaster also stated that while the female comparator had some performance problems observed at her 30-day evaluation, she improved and therefore passed her probationary period.
Complainant also alleged that the Postmaster told him he needed to get a postal uniform to identify him to the public as a carrier because there were "not many blacks in Alma" while assuring him there was no "KKK" in Alma. Complainant stated that the comment made him fearful for his own safety. The Postmaster stated he did supply Complainant with a postal hat and jacket so there would be no question about who he was and what he was doing at people's houses, but denied it had anything to do with his race or that he made any comment about race or the KKK. There is no other evidence corroborating Complainant's version of this incident.
In sum, neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the proffered reasons for the actions taken were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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
March 4, 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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