Genaro G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 21, 20180120171703 (E.E.O.C. Nov. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genaro G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171703 Agency No. 1G754007716 DECISION On April 3, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 10, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator at the Agency’s Dallas Postal and Distribution Center in Dallas, Texas. On May 31, 2016, Complainant claimed that, on his way to take his break, he stopped and talked with a Clerk (CW), a White male, who works in the facility. During the conversation, Complainant’s Distribution Operations Manager (MDO) approached him, stating that Complainant had been speaking with CW for a long time. Complainant rebutted that the conversation had been less than five minutes. Complainant stated that MDO countered that it was longer because he had been in and out of the dock area twice during the time Complainant had been speaking with CW. Complainant added that MDO angrily and loudly informed Complainant that he needed to get back to his work area. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120171703 2 Complainant said he tried to explain that he was going on break and stated that MDO needed to change his tone when talking to him. Complainant stated that the encounter became heated, and he reiterated that MDO had better change his “fucking tone.” Complainant admitted that he refused to follow MDO’s instruction to return to work. Thereafter, MDO contacted Complainant’s Distribution Operations Supervisor (SDO) and they issued an Emergency Placement in Off-Duty Status Letter to him, placing Complainant in an off- duty status (without pay) from May 31, 2016 until June 3, 2016. The letter stated that Complainant’s behavior was not only improper, but deliberate, and created a disturbance on the workroom floor in violation of Postal Service rules and regulations pertaining to employee conduct, including the Postal Service District Zero Tolerance Policy. On June 8, 2016, two days after Complainant returned to work, SDO issued to Complainant a Letter of Warning (LOW) for failure to follow instructions. The LOW was based on the May 31 incident. On August 29, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color (black) when on May 31, 2016, Complainant was placed on Emergency Placement, and subsequently, on June 8, 2016, Complainant was issued a Letter of Warning. After 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 Equal Employment Opportunity Commission 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 initially dismissed the complaint as moot because a grievance settlement on June 22, 2016, removed the Emergency Placement from all files and records and Complainant was awarded administrative leave for the period of the suspension, in addition to reimbursement of any annual leave he may have used. However, assuming that Complainant was an aggrieved employee, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged since Complainant admitted that he failed to follow instructions and was not able to produce any evidence that his race or color were a factor in the disciplinary actions. 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. (Aug. 5, 2015) (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”). 0120171703 3 Even assuming for the sake of argument that the complaint is not moot, we find no discrimination. We find that no persuasive evidence showing that the Emergency Placement and LOW actions were taken because of discrimination. The Agency’s reasons for placing Complainant on Emergency Placement were legitimate and nondiscriminatory. Complainant has failed to show that similarly situated individuals were treated differently. The LOW was issued for failing to follow instructions after Complainant refused to return to work as directed by his supervisor and instead went on break. Complainant admitted that he did not follow instructions. The record contains the Agency’s handbook which advises that employees follow the instructions of their supervisors even if they don’t agree with the instructions. Although Complainant maintains that his race and color drove the disciplinary action because CW was not disciplined, the record is undisputed that CW returned to work unlike Complainant once the supervisor intervened. Therefore, Complainant has failed to show that the Agency’s actions were a pretext for discrimination. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 0120171703 4 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 21, 2018 Date Copy with citationCopy as parenthetical citation