0120071800
03-26-2009
Frank Baiamonte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Baiamonte,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071800
Agency No. 4F-852-0172-05
DECISION
Complainant filed an appeal with this Commission from the January 24,
2007 agency decision finding no discrimination.
Complainant is 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. Complainant alleged that the agency
discriminated against him on the bases of race (White), color (white),
sex (male), religion (Catholic), age (May 27, 1963), national origin
(Italian), and reprisal when:
1. Continuing from May 31, 2003, the terms of his contract have been
enforced while the contracts of other contractors have not been enforced.
2. On September 8, 2005, complainant's contract was terminated.
In a prior agency decision, the agency dismissed the complaint for
failure to state a claim because it determined that complainant was an
independent contractor and not an employee. Complainant appealed that
decision to the Commission. In Baiamonte v United States Postal Service,
EEOC Appeal No. 01A61526 (August 7, 2006), the Commission determined
that complainant was an employee of the agency and not an independent
contractor. The Commission reversed the agency decision and remanded
the complaint to the agency for further processing. After investigation
of the complaint on remand, complainant requested that the agency issue
a decision.
The record reveals that complainant began working for the agency in
May 2003. His duties included delivering mail for the agency's post
office in Cottonwood, Arizona. Complainant was to have one vehicle with
a 150 cubic foot capacity and another vehicle had to have a minimum of
80 cubic feet of storage space and had to be five years old or newer.
The record also discloses that complainant purchased a Jeep Wrangler in
2004, but he was told that he could not use the Jeep Wrangler because it
did not have a minimum of 80 cubic feet of storage. Complainant alleges
that other workers were allowed to use a Jeep Wrangler on their routes.
The record reveals that complainant wanted to use a 1970s' Jeep Dispatcher
on the 150 cubic foot route three days a week but was told he could only
do so in emergencies. Complainant also wanted to use a Dodge Caravan
on his 150 cubic foot route. Complainant stated that his EEO activity
began in June 2003.
In its decision, the agency found that complainant failed to establish
a prima facie case that the agency discriminated against him based on
race, color, national origin, and age because he had not shown that he
was subjected to an adverse employment action and that others similarly
situated who were not in complainant's protected groups were treated
more favorably. The agency also determined that complainant failed to
establish a prima facie case of reprisal because the agency found there
was no evidence that complainant had engaged in prior protected EEO
activity or that he had established a causal link between the adverse
action and any prior EEO activity.
The agency also concluded that even if complainant had established a prima
facie case of discrimination on each basis, the agency had articulated
legitimate, nondiscriminatory reasons for its actions.
Regarding claim 1, the agency noted that vehicle requirements were
not the same for each of the named comparatives; that cubic space
requirements were assigned based on the capacity deemed appropriate
for the needs of the agency; that the age requirement for vehicles
differed because contracting officials started adding the five years
old or newer requirement in late 2003 or 2005; and that the wording in
subsequent contracts was changed to allow the continued use of older
vehicles if the vehicles were in good mechanical condition and approved
by an administrative official. The agency noted also that complainant
was not paid for extra trips because if complainant could take all the
mail on one trip and did not have to make a second trip, he could not
be paid for an extra trip.
Regarding claim 2, the agency found that complainant was terminated
because he had failed to provide service by refusing to deliver first
class mail and for failure to follow the instructions of a supervisor.
The agency also noted that complainant's performance was poor and he was
previously informed of errors and deficiencies in his performance through
training, oral communications, and informal and formal conferences.
The agency also found that attempts were made to improve complainant's
performance.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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). The prima facie inquiry
may be dispensed with where the agency has articulated legitimate,
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
Because 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).
Upon review, the Commission finds that the agency did not discriminate
against complainant. The Commission need not address whether complainant
has established a prima facie case on each basis because the Commission
finds that the agency has articulated legitimate, nondiscriminatory
reasons for its actions and complainant has failed to show that
the agency's reasons were pretext to mask unlawful discrimination.
Complainant has failed to show by a preponderance of the evidence that
when the agency engaged in the actions it did that it was motivated
by discriminatory animus. Even assuming that the agency allowed other
workers to use vehicles which were not in compliance with specification
requirements, the preponderance of the evidence does not demonstrate
that the agency was motivated by prohibited discrimination. At all
times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's decision finding no discrimination is AFFIRMED.
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
March 26, 2009
__________________
Date
2
0120071800
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120071800