0120123342
04-23-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120123342
Hearing No. 440201100012X
Agency No. 1J612000910
DECISION
On August 28, 2012, Complainant filed an appeal from the Agency's July 20, 2012, final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's facility in Chicago, Illinois.
On June 1, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity when:
1. on February 24, 2010, he was put out of the building;
2. on March 4, 2010, he was again put out of the building;
3. on or about March 17, 2010, he received a notice of removal; and
4. he was not properly paid for the week of April 30, 2010.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 12, 2012, where nine witnesses testified. The AJ issued his bench decision on July 10, 2012. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
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. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she 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, 411 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, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
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).
Our review of the record establishes that substantial evidence supports the AJ's determination that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the actions in dispute in this matter.
On February 24, 2010, Complainant's supervisor (Hispanic female) stated that she observed him in his assigned work area standing and reading, rather than working. Complainant's supervisor did not speak with Complainant when she first observed him. However, after several minutes when Complainant was observed still not working, Complainant's supervisor approached him and requested that Complainant work the bags in the international express area. According to her hearing testimony, Complainant just stood there following the request and made no indication that he intended to comply with these instructions. Complainant alleges that his supervisor yelled at him and told him to comply with the instructions or he would be put off the clock. In the statement Complainant provided in the course of the investigation of this matter, he indicated that after he was instructed to work the bags in the international mail area, he turned his back on his supervisor. Complainant further indicates that his supervisor then yelled at Complainant saying, "Did you hear me?" Complainant walked away and according to his statement, his supervisor yelled again saying, "[d]id you hear what I told you?" Again, the record indicates that Complainant did not respond at which point, Complainant's supervisor told Complainant that he was off the clock and told him to leave the building. Complainant requested that he be provided something in writing. When his supervisor refused, Complainant indicated that he wanted the postal police to escort him out.
A union official testified that he was asked by the supervisor to speak with Complainant about his refusal to comply with her instructions. The union official stated he did so, but Complainant was "noncommittal" about whether or not he would comply, and indicated that he would take care of the situation himself.
Complainant's supervisor contacted the Agency's labor relations specialist for guidance on how to handle the situation with Complainant. At the hearing in this matter, the labor relations specialist testified that she forwarded Complainant's supervisor a copy of the Agency's policy regarding failure to follow instructions and insubordination as well as the policy for emergency placement in an off-duty status. Complainant's supervisor was also informed that if Complainant did not follow instructions he could be taken off the clock. At 12:30 p.m. on February 24, 2010, Complainant was taken off the clock for his failure to follow instructions and insubordination.
On March 4, 2010 Complainant attended a scheduled pre-disciplinary meeting regarding the incident of February 24, 2010. Present at the meeting was Complainant's supervisor, the Agency's plant manager, the union president, and an individual designated to take notes for the plant manager. The record indicates that Complainant took out a tape recorder in anticipation of recording the meeting. Complainant's supervisor instructed Complainant to turn off the recorder. Complainant refused to comply with his supervisor's instructions. The record indicates that Complainant's supervisor ended the meeting and told Complainant to return to his workstation. However, after approximately, fifteen minutes, Complainant was again summoned to his supervisor's office. Complainant again produced a tape recorder, intent on recording the meeting. According to Agency policy, postal employees are prohibited from recording, monitoring or otherwise intercepting the oral or wire communications of any other person through the use of any electronic mechanical, or other device unless all parties involved in the communication are made aware and consent. The record indicates that Complainant's supervisor did not consent to recording the meeting and again asked Complainant to turn off the tape recorder. Complainant refused. Consequently, Complainant's supervisor placed Complainant off the clock and had him escorted out of the building.
By letter dated March 16, 2010, Complainant was issued notice of removal, effective no sooner than 30 days after receipt of the notice, for "Failure to Follow Instructions/Insubordination." Cited as the basis of removal were the incidents on February 24 and March 4, 2010. A prior letter of warning dated February 4, 2009, for failure to maintain a regular schedule, was also cited as prior discipline supporting the Agency's removal action. The supervisor further testified that the removal letter inadvertently left out a prior seven-day and fourteen-day suspension that were also part of Complainant's prior disciplinary record.
Complainant's last day of employment was April 16, 2010. In his complaint, Complainant alleged that he did not receive a paycheck for the period from April 11 through April 16, 2010. However, during the investigation, Complainant stated in his affidavit that, "I received my check for that last week I worked the second week of June." The Agency also represented that in an answer to interrogatory no. 9 from the Agency, Complainant stated that "at the time of my fileing [sic.] of the complaint I was not paid for last week of work April 11th through the 16th. I received this pay in June 2010."
Substantial evidence further supports the AJ's conclusion that Complainant failed to prove, by a preponderance of the evidence, that these reasons proffered for management's actions were a pretext for race discrimination and/or unlawful retaliation. Rather, the record establishes that it was the events of February 24 and March 4, 2010 that led to Complainant being placed on emergency leave and eventually issued a notice of removal. While there is evidence that this was not the sort of misconduct that required an emergency placement off-duty while disciplinary action was pending, there is simply no evidence to show that what happened was the result of racial or retaliatory animus. The record also establishes that Complainant was paid for his last week of work, albeit late. Significantly, we note that the AJ found that the source of the friction between the supervisor and Complainant was not a result of his race or prior EEO activity, but rather her belief that he was not properly performing his work duties as a result of his union steward duties. While this may be evidence of an unfair labor practice or a violation of the collective bargaining agreement, it does not indicate evidence of discrimination because of race or EEO activity.
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 adoption of the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
April 23, 2014
__________________
Date
2
0120123342
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123342