0120092851
11-20-2009
Harry M. Carney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Reference #: 0120092851
Harry M. Carney
24 Zemek St
Valley Stream, NY 11580
Reference #: 0120092851
U.S. Postal Service (N.Y. Metro)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
Harry M. Carney,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120092851
Agency No. 4A-110-0022-09
DECISION
On June 19, 2009, complainant filed an appeal from the agency's May 21, 2009 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
During the period at issue, complainant worked as a City Carrier at the agency's Post Office in Forest Hills, New York. Complainant had twenty-three years of service and no prior disciplinary record. He had been active in the union and had served as a union steward. In October 2008, complainant received a Notice of Removal for Conduct Unbecoming a Postal Employee based on an investigation by the Office of Inspector General (OIG) concerning his use of FMLA (Family Medical Leave Act) leave to cover part of a vacation to Aruba in November 2006, and an allegation that he had submitted a fraudulent note to cover his absence for jury duty in January 2008.
On December 9, 2008, complainant filed the instant formal EEO complaint. Therein, complainant claimed that the removal was motivated by discrimination on the bases of his race (white), sex (male), disability (impairment: back injury), and age (45). Complainant also exercised his right to file a grievance which was pending arbitration when the agency and the union agreed to a settlement on April 2, 2009, whereby the removal was rescinded and complainant was returned to work with partial back pay.
At the conclusion of the investigation of the EEO complaint, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC 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 concluded that complainant failed to prove that he was subjected to discrimination as alleged.
In its final decision, the agency concluded that complainant failed to establish a prima facie case of discrimination on any bases because he failed to identify any comparators and failed to proffer other evidence sufficient to support an inference of discrimination. The agency also found that complainant had no rebuttal to its explanation for disciplining him. The agency noted that postal employees were expected to be honest, trustworthy and of good character; that all PS Form 3971s (Request for or Notification of Absence) warn employees that the furnishing of false information is a criminal offense that can result in fines and/or imprisonment; and that management's actions were in accordance with the collective bargaining agreement.
CONTENTIONS ON APPEAL
On appeal complainant contends that the evidence in the OIG report was "flawed, inaccurate and untrue," but he does not elaborate further. Complainant also contends that the EEO report of investigation was incomplete due to a missing affidavit and that the Area Manager at Forest Hills should have conducted his own investigation of the charges set forth in the OIG report. Finally, complainant contends that his supervisors and managers were conspiring to remove him and that the agency's decision to rescind the removal is evidence of the conspiracy. The agency urges the Commission to affirm its final decision.
ANALYSIS AND FINDINGS
Initially, we note that while the agency has an obligation under 29 C.F.R. � 1614.108(b) to develop an impartial and appropriate factual record, complainant can also cure defects in an investigation by requesting a hearing and engaging in discovery. Complainant declined to request a hearing, and our review of the record finds the agency's investigation is adequate. We also observe that complainant did not cooperate with the investigator to the extent that he refused to answer several affidavit questions that pertained specifically to the allegations he raised. Furthermore, without persuasive evidence, the Commission does not presume that an agency's decision to rescind a removal via settlement agreement is evidence that management's actions were unlawfully motivated by discriminatory animus.
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). 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).
Although complainant bought plane tickets in June 2006 to go to Aruba in November 2006, he did not request the annual leave he needed for November 24-25, 2006 until one week prior to his departure. When the leave was denied, he submitted a request for sick leave under the FMLA. Complainant claims that the requested sick leave was for a flare up of his back-related impairments and that this flare up coincided with his vacation. Complainant does not deny that he went to Aruba for the scheduled vacation. Management contends that during 2006 and 2007, complainant used FMLA sick leave on seven different occasions: three in conjunction with a holiday and all seven in conjunction with his weekend non-scheduled day. The presumed FMLA sick leave abuse, combined with complainant's refusal to answer questions during a pre-disciplinary interview held in October 2008, led management to believe that complainant could not be trusted. In addition, the Commissioner of Jurors for Nassau County stated that the first note complainant produced to excuse his absence for jury duty on January 17, 2008 was not issued by his office. During the pre-disciplinary interview, complainant's response to all the questions surrounding his production of two different notes was that he could not recall.
However, in connection with the filing of his formal complaint, complainant provided a statement of facts detailing the circumstances surrounding his use of sick leave in November 2006 and the two jury duty related notes generated in January 2008. In this document, he offers an explanation for his actions that suggest he committed no wrongdoing and that if he did in fact do something wrong, it was completely unintentional. Specifically, complainant asserts that it was a coincidence that his back flared up just as he was about to go on vacation and also that the inconsistent jury duty notes were due to a typographical error made by the Nassau County clerk. However, complainant did not offer this version of the events to management during the pre-disciplinary interview which preceded the filing of the EEO complaint.
Upon review of the record, we are more persuaded by management's testimony than we are by complainant's testimony. That is to say, we find management to be more credible in light of the history of complainant's FMLA sick leave usage and his alleged inability to recall how he came to be in possession of two different notes from the Commissioner of Jurors' office until after he filed a formal EEO complaint. Consequently we find that the real reason for management's decision to remove complainant from the postal service was because management believed he failed to tell the truth and was thus guilty of conduct unbecoming a postal employee. Even if complainant was innocent of wrongdoing, we find his claim, that the real explanation for the removal was management's discriminatory animus, unworthy of belief. We find no evidence of pretext and no violation of Title VII, the ADEA or the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, the Commission AFFIRMS the agency's final decision.
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
November 20, 2009
__________________
Date
2
0120092851
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013