George V.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 14, 20160120140597 (E.E.O.C. Oct. 14, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 George V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120140597 Agency No. 4K-290-0037-13 DECISION On November 25, 2013, Complainant filed an appeal from the Agency’s October 23, 2013, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. 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 Full Time City Carrier at the Agency’s Post Office in Summerville, South Carolina. On May 29, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his race (Caucasian), sex (male), color (white) and in reprisal for prior protected EEO activity arising under Title VII when: 1. Complainant received a Letter of Warning for Unacceptable Work Performance, dated March 7, 2013. 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. 0120140597 2 2. Complainant received a 7-Day No Time Off Suspension for Unacceptable Work Performance/Failure to Follow Instructions, dated March 21, 2013. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(5), on the grounds of mootness. The Agency stated that the Letter of Warning at issue in claim (1) was rescinded in a Step B grievance decision and removed from all employment records. As for the Suspension at issue in claim (2), the Agency stated that it was also rescinded in a Step B grievance decision and removed from all employment records. The Agency determined that the resolutions of the negotiated grievance process had completely and irrevocably eradicated the effects of the alleged discrimination, and there was no reasonable expectation that the alleged violations will recur. The Agency noted that Complainant requested compensatory damages but that he offered no evidence to support the request, despite the fact that the Investigator requested specific information in support of his claim. The Agency also addressed the merits of the complaint. The Agency determined that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency stated that Complainant was issued a Letter of Warning because he misdelivered a parcel on February 22, 2013. Complainant claimed that three other carriers committed the same mistake but received no discipline. In support of issuing the Letter of Warning, Complainant’s Supervisor cited eleven other incidents of Carrier failures by Complainant including missed Managed Service Points (MSP) street scans and Undeliverable Bulk Business Mail (UBBM) errors between June 12, 2012 and February 20, 2013. The Agency stated that a customer called to request a package he was expecting and the downloaded scans indicated Complainant misdelivered the package to an incorrect address. With respect to the Seven-Day No Time Off Suspension, the Suspension was issued by Complainant’s Supervisor for Unacceptable Work Performance/Failure to Follow Instructions when Complainant failed to fill his vehicle with gas before his return to the office on March 2, 2013, as he had been instructed. The Agency stated that on March 2, 2013, the Supervisor had a conversation with all Carriers instructing them to obtain a gas card when the accountable cart came around and to fill their vehicle at some point during the day before returning to the facility. Complainant maintained that he had filled up his vehicle with gas the day before. Complainant stated that he did not fill up the gas tank on March 2, 2013, because it was not needed. The Agency observed that a coworker stated that on one occasion he failed to fill up his vehicle since he had filled the vehicle the day before and it was agreed that as long as he did not need gas again within seven days it was acceptable. Another coworker stated that he decided not to 0120140597 3 fill up because he had done so the previous day, but that he was disciplined along with Complainant and a female coworker. The Agency determined that Complainant failed to establish a prima facie case of race, color and sex discrimination as to each claim because he failed to identify proper comparison employees, and thus failed to show that he was treated less favorably than similarly situated individuals who were not members of his protected groups. The Agency noted that Complainant stated that a Caucasian, white female, and two African-American, black females misdelivered mail and were not disciplined. The Agency stated that the Supervisor asserted that Complainant lacked his own specific route because at the time, he was a T6 Carrier. With regard to the Caucasian, white female comparator, the Supervisor asserted that a customer on her route reported an erroneous package delivery, but it was not clear who committed the delivery error. The Supervisor stated that she held a discussion with this Carrier but the circumstances would not have supported formal discipline. As for one of the African- American, black female comparators, the Supervisor stated that she did not issue discipline because she did not do so for every infraction a Carrier had, but rather based her decision on the frequency and seriousness of the violation. The Agency stated that this Carrier’s infraction was not preceded by a record of violations as was Complainant’s infraction. With respect to the other African-American, black female, the Agency stated that it was not shown that she misdelivered a parcel. With regard to claim (2), the Agency noted that Complainant stated that two coworkers, one a Caucasian, white male and the other an African-American, black female, were issued a Letter of Warning for failing to fill their vehicle with gas but he was issued a seven-day Suspension. According to the Supervisor, she issued discipline based upon the severity of the violation as well as the frequency with which Carriers had infractions. The Agency reasoned that these two comparators were not similarly situated to Complainant as they lacked a recent series of infractions or a recent Letter of Warning The Agency determined that Complainant failed to set forth a prima facie case of reprisal as to each claim. The Agency reasoned that the temporal proximity between Complainant’s prior EEO activity and the incidents at issue was not sufficiently close to raise an inference of reprisal. The Agency noted that in Complainant’s most recent prior EEO complaint, Complainant requested a hearing on November 28, 2011. Assuming arguendo Complainant set forth a prima facie case under the alleged bases, the Agency determined that it articulated legitimate, nondiscriminatory explanations for its actions. The Agency rejected Complainant’s argument to establish pretext. The Agency stated there was nothing that showed by a preponderance of the evidence that its legitimate explanations were a pretext for discrimination. Complainant filed the instant appeal. 0120140597 4 CONTENTIONS ON APPEAL On appeal, Complainant contends that his complaint is not moot. Complainant states that he requested compensatory damages in the amount of $5,000 for cumulative pain and suffering. Further, Complainant argues that his complaint reflects ongoing harassment and therefore there is a reasonable expectation that the violation will recur. Complainant points out that on September 11, 2013, the Postmaster was found to have discriminated against him in a prior complaint when he took disciplinary action against Complainant. ANALYSIS AND FINDINGS With regard to the Agency’s dismissal of the complaint on the grounds of mootness, the regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in Complainant’s complaint are moot, the factfinder must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. The Agency determined that claims 1 and 2 were rendered moot by the Step B decisions rescinding both the Letter of Warning and the Suspension. Complainant maintains that it cannot be said with assurance that there is no reasonable expectation that the alleged violation will recur and that since he requested compensatory damages, the rescinding of both forms of discipline have not completely and irrevocably eradicated the effects of the alleged discrimination. We observe that Complainant submitted a request for $5,000 in compensatory damages for the pain and suffering which he claims he has endured due to the actions of the Supervisor. We find based on this submission that it is not clear that interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. In light of these factors, we find that the Agency’s dismissal of the complaint on the grounds of mootness was improper and is REVERSED. Disparate Treatment/Reprisal 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). Complainant must initially 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 Constr. Corp. 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. Tx. Dep't of Cmty. Affairs v. Burdine, 0120140597 5 450 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume arguendo that Complainant has set forth a prima facie case under the alleged bases with regard to both claims. With regard to claim (1), the Agency stated that Complainant was issued the Letter of Warning because he misdelivered a parcel on February 22, 2013, his assigned route. The Agency stated that a customer called to request a package he was expecting and the downloaded scans indicated Complainant misdelivered the package to an incorrect address. Complainant’s Supervisor cited eleven other incidents of Carrier failures by Complainant including missed MSP street scans and UBBM errors between June 12, 2012, and February 20, 2013. As for claim (2), the Agency asserted that it issued Complainant the Seven Day No Time Off Suspension for Unacceptable Work Performance/Failure to Follow Instructions when Complainant failed to fill his vehicle with gas before his return to the office on March 2, 2013, as he had been instructed. The Agency stated that on March 2, 2013, the Supervisor had a conversation with all Carriers instructing them to obtain a gas card when the accountable cart came around and fill their vehicle at some point during the day before returning to the Post Office. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the discipline issued to Complainant in claims 1 and 2. Complainant attempts to establish pretext as to claim (1) by arguing that three similarly situated coworkers were treated more favorably when they did not receive a Letter of Warning despite the fact that they also misdelivered packages. Complainant also maintains that this was the first misdelivery of his twenty-year career. We recognize that the Letter of Warning was rescinded pursuant to the grievance process and that there is an indication that one or more of the comparators committed a misdelivery and did not receive a Letter of Warning. However, the decisive factor in Complainant receiving a Letter of Warning, as opposed to the comparators, was the series of errors, eleven altogether, that Complainant had committed over an eight-month period prior to the misdelivery. We find that Complainant has not established that the Agency’s explanation for its issuance of the Letter of Warning was pretext intended to hide discriminatory intent. As for claim (2), Complainant argues that the Agency failed to identify an employee who was treated as harshly as he for the same or similar infraction of not refueling his vehicle. Complainant further argues that the Letter of Warning was improperly utilized as progressive discipline for the Seven-Day No Time Off Suspension. Complainant states that the Step B team pointed out that unadjudicated discipline cannot be considered as it violates the National Agreement. However, Complainant does not deny that he failed to follow his Supervisor’s instructions when he failed to fill his vehicle with gas before his return to the Post Office on March 2, 2013. The Agency explained that two comparators outside of Complainant’s protected groups were not similarly situated to Complainant as they lacked a recent series of infractions or a recent Letter of Warning. The Agency stated that one African-American, black female and a Caucasian female also received 7-Day No Time Off Suspensions for 0120140597 6 different infractions, as well as two other Caucasian males. The Agency stated that this demonstrates that management treated other City Carriers whose protected groups were different or the same as Complainant’s in a similar manner with respect to issuing Notices of 7-Day No Time Off Suspensions. We find that although it is disturbing that the Supervisor utilized unadjudicated discipline as progressive discipline for the suspension, we are not persuaded that this error was attributable to discriminatory intent or that any of the alleged bases were a factor in the Supervisor’s issuance of the suspension. Although no other employee received a suspension for violating the refueling instruction, the record indicates that the Supervisor factored the frequency of a Carrier’s violations as well as the severity of the infractions. We find that Complainant has not established that the Supervisor’s consideration of his record of violations was motivated by discriminatory intent. We further find that Complainant has not established that the Agency’s explanation for its issuance of the Notice of 7-Day No Time Off Suspension was pretext intended to hide discriminatory motivation. 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 determination that Complainant did not established that he was subjected to discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 0120140597 7 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 (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 October 14, 2016 Date Copy with citationCopy as parenthetical citation