0320160043
06-23-2016
Gregorio S.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gregorio S.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Petition No. 0320160043
MSPB No. DA0752140590I3
DECISION
On May 12, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of 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, we CONCUR with the MSPB's ultimate determination that Petitioner did not establish he was discriminated against with regard to his suspension.
BACKGROUND
Petitioner worked as a Postmaster at the Agency's Calhoun Post Office in Bastroup, Louisiana. Petitioner alleged that the Agency discriminated against him on the basis of race (Caucasian) when it placed him on an indefinite suspension, without pay, on July 14, 2014.
On January 30, 2014, Petitioner was arrested on felony charges of accessory after the fact to armed robbery with a firearm. Petitioner allegedly admitted to the police that he received items belonging to one of the perpetrators of the robbery and threw them into the river, in an attempt to protect his son. Petitioner also allegedly asked a witness to provide a false alibi for his son. On January 31, 2014, Petitioner called his supervisor to request sick leave, and then was placed on leave under the Family and Medical Leave Act (FMLA) through June 2014. Petitioner's doctor stated that he was unable to work due to stress issues.
On February 1, 2014, a local news channel aired a story about Petitioner's actions, and on February 2, 2014, a local print newspaper published an article identifying Petitioner and the charges against him. Petitioner was indicted on April 15, 2014.
On June 9, 2014, the Agency conducted an investigatory interview with Petitioner where he admitted to the arrest, but stated that he was innocent until proven guilty. On June 12, 2014, the Agency proposed to indefinitely suspend Petitioner because there was reasonable cause to believe that he committed a crime for which a sentence of imprisonment may be imposed. Petitioner provided a response to the proposal, and on July 10, 2014, the deciding official (DO) issued his decision upholding the suspension, effective July 14, 2014. The DO considered the seriousness of the charge; Petitioner's work record and length of service; Petitioner's public position of Postmaster; and the loss of trust in Petitioner, and concluded that there was no lessor penalty available. The suspension was to last until the criminal charges were resolved, and then for a reasonable time for the Agency to learn of the disposition and determine the course of action in light of the disposition. On June 5, 2015, the charges against Petitioner were amended to resisting arrest, to which he pled guilty, and Petitioner returned to work.
On August 11, 2014, Petitioner filed an appeal of his indefinite suspension with the MSPB alleging, among other things, that he was discriminated against based on his race because he was disparately treated as compared to an African-American safety manager (SM). Petitioner alleged that the SM was treated more favorably because she was placed on paid administrative leave, following her arrest for throwing bleach on minors.
Petitioner withdrew his request for a hearing, and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on November 6, 2015, sustaining the indefinite suspension. The AJ found that at the time the Agency imposed the indefinite suspension, it had reasonable cause to believe that Petitioner had committed a crime that could result in his imprisonment based on the Bill of Information supporting the arrest, the arrest warrant, an affidavit for the arrest warrant, and the Sheriff's report.
In regards to Petitioner's racial discrimination claim, the AJ found that the SM was not similarly situated to Petitioner because: (1) their alleged criminal misconduct differed; (2) the SM was removed from the Agency, which was a harsher penalty than an indefinite suspension; (3) they held different positions; and (4) they had different supervisors. The AJ also noted that the SM's supervisor placed her on administrative leave because she did not have any evidence to support an indefinite suspension. Additionally, the AJ found that the record was devoid of any facts to support Petitioner's claim that the real reason for the Agency's action was discrimination.
Petitioner sought review by the full Board, which issued the Final Order on April 15, 2016, denying Petitioner's petition for review, and affirming the initial decision. For Petitioner's affirmative defense of disparate treatment based on his race, the Board found that the AJ properly applied the analytical framework set forth in Savage v. Department of the Army, 122 M.S.P.R. 612. The Board agreed with the AJ that Petitioner and the SM were not similarly situated; and that Petitioner had not proven his disparate treatment claim because the record was devoid of any facts to support his allegation that the real reason for the Agency's action was discrimination. The Board also stated that the AJ noted that the Agency considered placing Petitioner on administrative leave but did not because Petitioner requested FMLA leave; and that an employee is not entitled to paid administrative leave if he is unable to report to work.
Petitioner then filed the instant petition; he has not provided any arguments or evidence is support of his petition.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Disparate Treatment
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of race discrimination when the Agency suspended him indefinitely; therefore, we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Petitioner had established a prima facie case of discrimination based upon race, we find that the Agency articulated a legitimate, nondiscriminatory reason for placing him on an indefinite suspension. At the time that the Agency issued the indefinite suspension, it had evidence to believe that Petitioner committed a crime for which he could be imprisoned. The DO stated that he paid particular attention to the affidavit in support of the arrest warrant, which noted that Petitioner admitted to throwing evidence into the river; and that a witness stated that Petitioner asked him to provide a false alibi for his son. The DO considered the nature of Petitioner's actions and concluded that he had lost trust and confidence in Petitioner's ability to perform his job. The DO stated that he considered other factors, including the fact that Petitioner was a Postmaster, which was a position of trust and included supervising other employees; Petitioner's tenure with the Agency; and the fact that Petitioner presented no evidence to mitigate the proposed indefinite suspension. The DO also noted that Petitioner's position was of a high profile in a small community, and the news reports of his actions adversely affected the Agency's mission.
We agree with the MSPB that Petitioner did not show any evidence that he was disparately treated because of his race. While Petitioner argued that SM was treated more favorably, the Agency, as discussed above, proffered legitimate, nondiscriminatory reasons for its actions, and Petitioner has the burden to show that the reasons were pretext for discrimination. We find that Petitioner did not provide any testimony or evidence to show that the Agency's reasons for his indefinite suspension were pretext for discrimination.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate determination that Petitioner did not establish that the decision to suspend him indefinitely was based on his race.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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 Petitioner'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
__6/23/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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