0120100085
06-21-2011
Daniel G. Lopez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Daniel G. Lopez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120100085
Hearing No. 451-2009-00120X
Agency No. 4G-780-0323-08
DECISION
On September 30, 2009, Complainant filed an appeal from the Agency’s
August 26, 2009, 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. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Letter Carrier at the Agency’s Post Office facility in Brownsville,
Texas. Complainant also served as Branch President and Steward of the
local employees’ union.
On November 14, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of national origin
(Hispanic) and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when:
1. on August 15, 2008, his driving privileges were suspended for 45 days;
2. on or about July 5, 2008, his request for leave under the Family
Medical Leave Act (FMLA) was denied;
3. on unspecified dates, the Postmaster has failed to schedule formal
Step meetings in the grievance process with Complainant;
4. in Complainant’s prior EEO complaint, Complainant twice requested
a hold-down assignment; however he was bumped off by a junior white
employee.
The Agency dismissed claims (3) and (4), pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim and stating the same claim
raised in a prior complaint, respectively. Subsequently, Complainant
amended his complaint to include the following claims:
5. on December 4, 2008, Complainant received a 14-day suspension;
6. on December 2, 2008, approval for his FMLA-covered condition was
deactivated;
7. on December 26, 2008, Complainant was issued a Notice of Proposed
Removal;
8. on unspecified date, the Postmaster made a derogatory remark to
another employee;
9. on unspecified date(s), Complainant's hold-down assignment was denied;
10. on unspecified date, Complainant's claim with the Office of Workers’
Compensation Programs (OWCP) was denied.
The Agency accepted claims (5) and (6) for investigation. The Agency
dismissed claims (7), (8), and (10) for failure to state a claim pursuant
to 29 C.F.R. § 1614.107(a)(1). The Agency also dismissed claim (9)
pursuant to C.F.R. § 1614.107(a)(1) for raising a claim which was
resolved by settlement agreement dated June 4, 2008.
The Agency investigated claims (1), (2), (5) and (6). 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 but subsequently withdrew his request. Consequently, 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.
Complainant appealed. On appeal, Complainant alleged that the Agency’s
investigation was not adequate. Further, Complainant, through counsel,
asserted that the Agency fragmented his complaint by dismissing claims
(3) and (4). In addition, Complainant’s counsel indicated that in
dismissing these claims, the Agency fragmented Complainant’s claim of
harassment. Finally, Complainant’s attorney argued that the Agency
has a history of abuse of the EEO process and discrimination against
Hispanics. Therefore, Complainant requested that the Commission find
in his favor. The Agency asked that the Commission affirm its final
decision.
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”).
Dismissal of Claims (3) and (4)
The Agency procedurally dismissed claims (3), (4), (7) – (10). However,
on appeal, Complainant only challenged the Agency’s dismissal of claims
(3) and (4). Therefore, we will not address the dismissal of claims
(7) – (10) in this decision.
As to claim (3), Complainant alleged the Agency discriminated against
him during the grievance process. The Commission has held that an
employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request
No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request
No. 05930106 (June 25, 1993). The proper forum for Complainant to have
raised his challenges to actions which occurred during the grievance
proceeding was at that proceeding itself. It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the arbitration process. Therefore, we find that the
Agency properly dismissed claim (3).
As to claim (4), Complainant specifically stated in his formal complaint
that in his last EEO complaint, he alleged discrimination when he was
bumped from his assignment. The regulation set forth at 29 C.F.R. §
1614.107(a)(1) provides that the agency shall dismiss a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. Here, Complainant, in his formal complaint,
admitted that the matter was raised in his prior EEO complaint.
Therefore, we find that the dismissal of claim (4) was appropriate.
Complainant also asserted on appeal that the Agency fragmented
the complaint by failing to include claims (3) and (4) as part of
Complainant’s claim of harassment. As noted above, we find that the
Agency dismissal of these claims was appropriate.
Claims (1), (2), (5) and (6)
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. 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. 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. Texas Dep’t. of Cmty. 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.
St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has provided
legitimate, nondiscriminatory reasons for its actions. We note that the
Postmaster averred that Complainant’s driving privileges were suspended
(claim 1) based on the Agency’s policy following Complainant’s
at-fault accident. Complainant concedes that he hit a mailbox while
delivering mail, but characterizes the accident as “minor.” Further,
the Letter Carrier Supervisor averred that Complainant was issued the
December 2008 14-day suspension (claim 5) for unacceptable performance
and failure to follow instructions and being Absent Without Official Leave
(AWOL).
With regard to his FMLA-related claim (claim 6), in December 2008,
Complainant was notified by management that his FMLA certification
was “deactivated” because of the need to submit further medical
documentation in support of his claim due to a potential change in the
duration of his condition. Once Complainant submitted an application
for re-certification, his coverage was re-certified on January 2, 2009.
Complainant’s original application for FMLA coverage was submitted in
January 2008, and indicated that his condition would last for one year.
Therefore, Agency management stated that he was asked to submit a new
application for re-certification because the year had expired.
Finally, with regard to the denial of FMLA leave on July 5, 2008 (claim
2), Complainant’s supervisor averred that when Complainant was absent
on July 5, 2008, the day after a holiday, and requested FMLA-related
annual leave, the supervisor requested medical documentation establishing
that his absence was related to his FMLA-approved medical condition.
The supervisor stated that Complainant did not supply the requested
documentation. Therefore, the supervisor disapproved the annual leave
request and changed the time to Leave Without Pay (LWOP).
Upon review of the record, we find that Complainant has not shown that
the Agency’s reasons were pretext for discrimination.1 We note that on
appeal, Complainant asserted without evidence of the Agency’s history
of discrimination against Hispanic employees. The Commission notes that
even if Complainant had testimony supporting his version of the facts,
he still failed to provide any evidence to show that the Agency’s
reasons for its actions were pretext for prohibited discrimination.
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 final 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
June 21, 2011
__________________
Date
1 As to Complainant's argument of an inadequate investigation, we
find that Complainant merely identified a list of individuals who he
claimed were not properly questioned by the investigator, with no more
than a bare assertion to support this contention. As such, we cannot
conclude that the investigator's failure to undertake evidentiary
development to ascertain if there is any substance to Complainant's
bare assertion renders the investigation inadequate. In this regard,
we advise Complainant that it is he who bears the burden of proof in
this matter. See Burdine, 450 U.S. at 256.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100085
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100085