0120122710
07-24-2014
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. 0120122710
Agency No. 4J604001212
DECISION
On June 5, 2012, Complainant filed an appeal from the Agency's May 30, 2012, 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. 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 City Carrier at the Agency's facility in Dolton, Illinois.
On January 9, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), age (60), and reprisal for prior protected EEO activity when:
1. On October 6, 2011, he received a letter of warning (LOW) for failure to follow postal security rules; and
2. On December 22, 2011 he received a 7-Day Suspension for failure to follow postal security rules and unauthorized overtime.
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). 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.
The instant appeal followed.
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. (November 9, 1999) (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").
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).
Throughout the complaint process, Complainant argued that other similarly situated mail carriers were treated more favorably than he was. Specifically, Complainant contends that other mail carriers outside of his protected classes committed similar infractions and were not disciplined in the matter that he was. However, Complainant failed to provide names of specific employees he contends were treated more favorably. Therefore, without more, we find that Complainant has failed to establish a prima facie case of discrimination on any alleged basis.
Even assuming arguendo that Complainant established a prima facie case of discrimination or reprisal, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter. Regarding claim 1, the evidence gathered during the investigation shows that after Complainant left for the day on September 29, 2011, his supervisor discovered that Complainant's vehicle was left in the facility parking lot with all of its doors unlocked, and the cargo door open. A pre-disciplinary interview regarding the incident was conducted on October 5, 2011, at which Complainant was present with a union representative. During the interview, the record indicates that Complainant failed to offer any explanation for leaving the doors of his assigned postal vehicle unlocked. The record indicates that in response to questions from Agency officials about the incident, Complainant "pled the fifth" without any further explanation. Complainant's supervisor determined that Complainant's conduct violated Agency policy and issued a letter of warning (LOW) dated October 6, 2011. As a result of a grievance filed by Complainant, the record discloses that the LOW remained on file for one year from the date of issue.
With respect to claim 2, the record indicates that Complainant was charged with failure to follow postal safety and security rules when, on December 8, 2011, he again left his postal vehicle unlocked and unattended and left a hamper of mail unsecured near the unlocked vehicle. Complainant was also charged with the use of unauthorized overtime. The record indicates that on several occasions while Complainant worked overtime in December 2011 (3, 6-8, 12-16 and 20), he had also received auxiliary assistance in order to complete the mail delivery on his route. The record further indicates that on December 7, 2011, Complainant failed to call in to the office before using overtime. Both incidents described in claim 2 were found to have violated Agency policy. According to the Agency, Complainant's conduct violated the requirement that carriers are to conduct work in a safe manner and must follow established procedures for requesting overtime or auxiliary assistance. In that regard, on December 22, 2011, the Agency issued a 7-day suspension for Complainant's conduct.
A careful review of the record shows that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management for the disputed disciplinary actions are pretext for discrimination.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the final agency 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
July 24, 2014
__________________
Date
2
0120122710
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122710