0120142344
06-10-2016
Chas T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chas T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120142344
Agency No. 4G-760-0094-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 8, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant worked as a City Carrier at the Agency's Amarillo-Jordan Post Station in Amarillo, Texas.
On October 23, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race (Hispanic), sex (male), and color (brown) when:
1. on May 15, 2013, he was issued two Letter of Warning;
2. on June 18, 2013, he was singled out, about being out of uniform;
3. on June 21, 2013, he was issued a Letter of Warning;
4. on June 21, 2013, he was issued a 7-Day Suspension;
5. on July 16, 2013, he was issued a Letter of Warning;
6. on July 19, 2013, he was issued a 7-Day Suspension;
7. on August 9, 2013, he was issued a 7-Day Suspension; and
8. on August 19, 2013, he was issued a 14-Day Suspension.
After the investigation of the claims, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On May 8, 2014, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex and color discrimination. The Agency further found that assuming Complainant established a prima facie case of race, sex and color discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and color. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
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, she 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Supervisor, Customer Service stated that during the relevant period, he was Complainant's immediate supervisor (supervisor). The supervisor stated that in regard to claim 1, he issued two Letters of Warning to Complainant on May 15, 2013. The first May 15, 2013 Letter of Warning was related to Complainant's unacceptable conduct on May 8, 2013, and the second May 15, 2013 Letter of Warning was related to Complainant's unaccepted performance and failure to follow instructions on April 24 and 30, 2013 and May 2, 2013.
In the first May 15, 2013 Letter of Warning, the supervisor stated that on May 8, 2013, he conducted an investigative interview with Complainant but his answers were unclear. The supervisor stated that on May 9, 2013, he conducted a second investigative interview in which Complainant admitted that the Station Manager had asked him a question regarding the volume and duties of the day. Complainant also acknowledged he told the Station Manager "I am talking to my floor supervisor [floor supervisor]." The supervisor determined that Complainant's actions were uncooperative and "not obliging, thus contributing to an unpleasant work environment."
Further, the supervisor stated that Complainant was in violation of Sections 112.21, 112.24 and 112.25 of Handbook M-41 and Sections 665.11 "Loyalty," 665.13 "Discharge of Duties," 665.15 "Obedience to Orders" and 665.16 "Behavior and Personal Habits" of the Employee and Labor Relations Manual.
With respect to the second May 15, 2013 Letter of Warning, the supervisor stated during the May 8, 2013 investigative interview, Complainant provided no reasonable explanation for his failure to perform all the duties of his position as instructed by his supervisor. The supervisor stated that when Complainant was asked if he had any problems with his scanner or labels on four specific dates, he stated "that you 'have trouble with scanner everyday.' When in fact [Complainant] you did not have trouble with your scanner or labels on April 27, April 29, May 3 or May 6, 2013 and scanned all MSP label on each day." The supervisor determined that it was Complainant's responsibility to perform all work duties, but that he did not follow his supervisor's instructions.
Moreover, the supervisor stated that the first May 15, 2013 Letter of Warning was resolved and reduced to an official discussion on December 3, 2012 while the second May 15, 2013 Letter of Warning was expunged on August 20, 2013.
Regarding claim 2, the supervisor denied singling out about his uniform because he wore an unauthorized baseball cap and footwear. The supervisor stated that other employees were addressed for wearing unauthorized attire and footwear.
Regarding claim 3, the supervisor stated that on June 21, 2013, he issued Complainant a Letter of Warning for unsatisfactory performance and unsatisfactory conduct. The supervisor stated that on June 17, 2013, Complainant was late leaving the facility, 29 minutes later for his route; and on June 18, 2013, he wore improper footwear and baseball cap. In the June 21, 2013 Letter of Warning, the supervisor stated that Complainant was placed on notice that he "would be required to report for duty in the authorized footwear and cap and would have to take the cap you were wearing at the time off. You made accusations that you were being 'picked on' [and] that you were broke and had no money to buy shoes. Throughout the morning you complained about the Postal Policy and regulations. You were argumentative and disruptive. You did not remove the cap. It was not until you were told a second time you would have to remove your cap did you comply."
Further, the supervisor stated that the June 21, 2013 Letter of Warning was resolved and reduced to an official discussion as a result of a grievance settlement.
Regarding claim 4, the supervisor stated that on June 21, 2013, he issued Complainant a 7-Day Suspension for unacceptable performance and failure to follow instructions. The record reflects that on June 11, 13 and 15, 2013, Complainant did not scan Managed Service Point (MSP) labels. In the June 21, 2013, the supervisor stated "we have had stand-ups as well as discussion hat scanning is a required part of your job and you need to make sure that you scan your scan points and if there is an issue with one of your scan points you must bring it to the attention of your supervisor."
The supervisor stated that during the June 20, 2013 investigative interview, Complainant provided "no reasonable explanation to mitigate corrective action being taken for failure to perform all the duties of your job as instructed by your supervisor." Moreover, the supervisor stated that the June 21, 2013 7-Day Suspension was later reduced to a Letter of Warning.
Regarding claim 5, the supervisor stated that on July 16, 2013, he issued Complainant a Letter of Warning for unsatisfactory attendance and failure to maintain regular attendance. Specifically, the supervisor stated that Complainant had the following unscheduled absences: February 4, 2013 (4 hours); February 25, 2013 (8 hours); February 26, 2013 (8 hours); February 27, 2013 (8 hours); March 6, 2013 (8 hours); March 7, 2013 (8 hours); March 8, 2013 (8 hours); March 16, 2013 (8 hours); May 18, 2013 (8 hours); May 20, 2013 (8 hours); June 15, 2013 (1.67 hours); and July 1, 2013 (.11 hours).
Further, the supervisor stated that during the July 3, 2013 investigative interview, Complainant was asked if he was aware that one of his primary responsibilities is to be regular in attendance and that Complainant acknowledged that he was aware. The supervisor stated that Complainant was then asked if he had been notified by management that his attendance was unacceptable and he "answered 'no, from 2/4/13 tile[l] now, no.' In fact [Complainant] you were given an investigative interview on March 21, 2013 regarding your attendance. You stated you were aware of the Family Medical Leave Act (FMLA) and were denied. You were not issued corrective action at that time; instead your supervisor gave you a discussion. [Complainant] you have failed to provide a reasonable explanation for failing to be regular in attendance."
Moreover, the supervisor stated that the July 16, 2013 Letter of Warning was later reduced to an official discussion as a result of a grievance settlement.
Regarding claim 6, the supervisor stated that on July 19, 2013, he issued Complainant a 7-Day Suspension for unacceptable performance and failure to follow instructions for "not performing all duties, failure to follow established rules and failure to follow direction of your supervisor." The supervisor further stated that the July 19, 2013 7-Day Suspension was "impassed" on January 28, 2014.
Regarding claim 7, the supervisor stated that on August 9, 2013, he issued Complainant a 7-Day Suspension for unacceptable performance and failure to follow instructions. The record reflects that on July 1 and 2, 2013, Complainant did not deliver the mail in the authorized time and accurately estimate his request for auxiliary assistance on his PS form 3996. The record further reflects that on August 6, 2013, Complainant failed to deliver the mail in the authorized time and he curtailed mail without authorization. Moreover, the supervisor stated that the August 9, 2013 7-Day Suspension was later reduced to an official discussion as a result of a grievance settlement.
Regarding claim 8, the supervisor stated that on August 19, 2013, he issued Complainant a 14-Day Suspension for unsatisfactory work performance. The supervisor stated that on August 15, 2013, Complainant did not deliver the mail in the authorized time and used unauthorized overtime. The supervisor further stated that on August 16, 2013, Complainant was provided an opportunity to explain his actions, in the presence of his union representative. The supervisor stated that Complainant stated that his "variances were contributed to delivering ADVOs 1/2 way through Palo Duro to the end of his assignment. Your explanation has been noted and is unacceptable. You failed to notify your supervisor that you need additional time and you worked overtime on your assignment without getting authorization first. You failed to provide an accurate estimate on your Form 3996. You begin tour at 08.01 and end tour at 18.70 using 2 hours and 19 minutes of overtime when you were authorized 32 minutes."
Furthermore, the supervisor stated that the August 19, 2014 14-Day Suspension was expunged as a result of a grievance settlement.
The Customer Service Supervisor stated that during the relevant period she was the Acting Station Manager of the Amarillo-Jordan Station. The Customer Service Supervisor stated that she was the concurring official concerning Complainant's four suspensions. Furthermore, the Customer Service Supervisor stated that Complainant's race, sex and color were not factors in Agency management's decision to issue him the subject suspensions.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected bases -- in this case, race, sex and color. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of his race, sex and color.
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 (M0416)
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. The requests 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 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
June 10, 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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