Francisco Rivota, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 23, 2009
0120091240 (E.E.O.C. Jun. 23, 2009)

0120091240

06-23-2009

Francisco Rivota, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Francisco Rivota,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091240

Agency No. 4J606012206

Hearing No. 440-2007-00075X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 14, 2008 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.

Complainant alleged that the agency discriminated against him on the

bases of national origin (Hispanic) and reprisal for prior protected

EEO activity under Title VII when: 1) on May 17, 2006, his manager

screamed at him and told his supervisor to fire him; 2) on May 18, 2006,

he was issued a Letter of Warning for Failure to Follow Instructions;

3) on June 6, 2006, his supervisor kicked him; 4) on June 14, 2006,

he was issued a 7-Day Suspension for Failure to Follow Instructions;

5) on July 7, 2006, he was issued a 14-Day No Time-Off Suspension for

Failure to Follow Instructions; and 6) on/about May 5, 2006, his request

for sick leave was denied and he was charged AWOL.

The record reflects that an EEO investigator processed complainant's

claims, and a copy of the investigative file was transmitted to

complainant on November 9, 2006. Following receipt of that report,

complainant requested a hearing before an Administrative Judge (AJ).

On April 3, 2008, the AJ dismissed complainant's case as untimely raising

issues not raised in the complaint process or by his formal complaint.

The AJ thus remanded the complaint to the agency for final action

determination. On April 25, 2008, the agency issued its final decision

adopting the AJ's dismissal of the complaint. Complainant subsequently

appealed the agency decision to the Commission on May 13, 2008, and via

decision issued November 7, 2008, the Commission remanded the initial

six claims to the agency for issuance of a final decision on the merits

of complainant's claims. Therefore, the agency issued a final decision

in compliance with the Commission's November 7, 2008 Order.

In its final decision, the agency found no discrimination. The agency

determined that management had cumulatively recited legitimate,

nondiscriminatory reasons for its actions. Specifically, relative to

claim 1, the Manager of Customer Service Operations (MCS), stated that on

May 17, 2006, complainant was out in the parking lot with another employee

who had been placed off the clock. She contended that complainant was

about 20 to 30 feet away with his back to her; therefore, she called out

to him in a manner that he could hear her, instructing him to return

to the facility. The MCS averred that the complainant did not have

permission to be on union business as he had not requested union time.

She noted; however, that she was not aware of complainant's prior EEO

involvement at the time; she only became aware during the REDRESS session

relating to the present claims. The Manager of Customer Service, Chicago

Edgebrook Carrier Annex (MCSE), stated that on the date in question,

the MCS did not yell at complainant; she only instructed him to return to

the building. The MCSE stated that the MCS did inform complainant that

he had failed to follow her instructions; however, she absolutely did not

tell him to fire complainant. He averred that no discipline was issued

to complainant as a result of the incident of May 17, 2006. The MCSE

indicated that he was aware of complainant's previous EEO involvement;

however, he was unable to fathom how his previous EEO involvement was

a factor in the events.

In response to claim 2, the Acting Supervisor of Customer Services,

Edgebrook Carrier Annex (ASCE), testified that he was one of complainant's

direct supervisors and that he was responsible for issuing the Letter of

Warning dated May 18, 2006. He stated that he issued the LOW after the

MCSE walked the floor and discovered a number of City Carriers casing

their DPS mail. The ASCE indicated that the MCSE gave instructions to

the supervisors to issue discipline to those employees caught violating

the rules. He asserted that complainant was one of the employees caught,

as he violated the rules on a daily basis. He further asserted that

Black employees were also issued discipline for similar infractions, as

were Asian employees, and a Caucasian employee. The ASCE noted that he

was aware of complainant's prior EEO involvement, as he had to provide

coverage for complainant's route when he was a representative or witness

at another employee's EEO hearing. He stated that complainant's prior

EEO involvement was not a factor in the discipline issued.

Relative to claims 3 and 4, the ASCE maintained that, on June 6, 2006,

he was sitting at his desk with the vehicle keys in a tub next to him

when complainant came up to the desk wanting keys to a vehicle. The ASCE

asserted that, since he typically ran short of vehicles, he assigned

the vehicle keys. He emphasized that complainant was on an assignment

that day and was not entitled to a vehicle. The ASCE contended that,

as complainant tried to reach into the tub to get keys for a particular

vehicle, he used his foot to pull the tub closer to him and, at that

point, complainant alleged that he was kicked. He denied that he kicked

complainant. The ASCE asserted that he then called the Postal Inspection

Service and an Inspector conducted an inquiry into complainant's claims.

He stated that the Inspector concluded that complainant's statement was

not consistent with what took place; therefore, no action was taken.

The MCS stated that she spoke with the Postal Inspector subsequent to

his investigation and was informed that he found no evidence to indicate

that an assault occurred; as a matter of fact, he was unable to make

"heads or tails" of complainant's allegations. The MCS further stated

that she requested that the Workplace Environment Specialist complete a

workplace climate survey. She stated that the Specialist interviewed

complainant and a number of other employees, but was unable to find

evidence in support of complainant's claim.

Concerning to the 7-Day Suspension dated June 8, 2006, the ASCE asserted

that the discipline was issued due to complainant's actions occurring on

June 6, 2006, when he failed to follow his instructions. Specifically,

he maintained that complainant wanted to call the Union but was told

that he could not until he got the mail up. He stated that complainant

then indicated that he needed to go to the restroom. The ASCE declared

that, instead, complainant used his cell phone to call the Union office,

in violation of the instructions given him.

In response to the matter brought forth in claim 5, the ASCE stated

that he issued the 14-Day Suspension to complainant for failure to

follow instructions. He indicated that, as best as he could recall,

complainant worked unauthorized overtime on his principal assignment

during the week in question, and he went into a penalty overtime status

by the 5th day. He maintained that the discipline was issued for

unauthorized overtime/failure to follow instructions.

With respect to the matter brought forth in claim 6, the MCSE stated that,

on May 5, 2006, complainant left work on sick leave and was advised to

provide supporting documentation of his absence. He stated that, upon

his return to duty, complainant apparently submitted the documentation

to another supervisor who failed to acquire a copy of the original PS

Form 3971 already signed by him. He indicated that complainant was,

thus, improperly charged AWOL as a result. The MCSE indicated that the

error involving complainant was corrected, and he was substantially paid

for the time for which he was previously charged AWOL.

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 EEOC Management

Directive 110, 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 such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);

Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December

14, 1995).

Complainant submits no statement on appeal. Complainant has not

produced evidence to show that the agency's explanations are a pretext

for discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted 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 (M1208)

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), 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 (S0408)

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 (Z1008)

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 23, 2009

__________________

Date

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0120091240

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091240