0120090238
02-20-2009
Henry L. Respres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Henry L. Respres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090238
Hearing No. 410-2008-00161X
Agency No. 1H-302-0053-07
DECISION
Complainant filed an appeal from the agency's September 19, 2008 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisor, Distribution Operations (SDO), EAS-17, at the agency's
North Metropolitan Processing and Distribution Center facility in Duluth,
Georgia. On October 26, 2007, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of race (unspecified),
sex (male), color (unspecified), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. On or about July 11, 2007, he was placed on Emergency Placement
in an Off-Duty Status.
2. On August 16, 2007, complainant was issued a Notice of
Disciplinary Action-Proposed Letter of Warning In Lieu Of a 14-Day
Suspension for failure to properly discharge his duties.
At the conclusion of the investigation, 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). Complainant requested a
hearing but subsequently withdrew his request. Consequently, the agency
issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency found that on July 11, 2007, M1 issued
complainant a letter notifying him that effective July 12, 2007,
complainant was placed on emergency off-duty, non-pay status. M1 found
that complainant caused a major service impact and unnecessary cost
to various offices on July 11, 2007, when M1 discovered that at 8:45
am approximately sixteen containers of First Class Mail were found on
the facility dock between dock doors 57 and 87. The mail had arrived
at 5:58 am from the BMC annex on Traitor ABMC 038. The trailer was
not off-loaded until after the connecting delivery trips had departed.
Extra transportation had to be arranged to deliver the containers of
mail, which ultimately left the processing and distribution center
between 9:30 am and 11:45 am.
The agency noted that according to time and attendance records,
complainant was placed on paid leave status from July 12 through July
19, 2007. From July 20 through July 26, 2007, complainant was placed
on an unpaid leave status (40 hours). From July 27, 2007 through
August 18, 2007, complainant was again placed on paid leave status.
During this time, M1 issued complainant a notice, dated August 16, 2007,
that instructed complainant to return to work on his next scheduled
work day. Following his scheduled days off on August 19 and 20, 2007,
complainant took annual leave from August 21 through August 24, 2007.
Complainant returned to work on August 27, 2007.
The agency's decision affirmed its earlier dismissal, dated November 8,
2007, of claim (2), in which complainant claimed that he had received
a notice proposing to issue him a Letter of Warning in Lieu of 14-day
Suspension, dated August 15, 2007. The agency found that no decision
regarding the proposed discipline had been made and complainant had
not received any decision on the proposal. The notice remained a
preliminary action only and so, complainant was not aggrieved by the
agency's proposal. Accordingly, the agency affirmed its earlier dismissal
of claim (2) pursuant to 29 C.F.R. � 1614.107(a)(5).
With respect to claim (1), the agency found that complainant had
not identified other employees, not in his protected race, sex or
color classes who were similarly situated. Specifically, the agency
found that some of the employees that complainant identified were not
supervised by M1. Other employees were not charged with conduct similar
to the conduct attributed to complainant. While complainant claimed
the delay of the mail was due to circumstances beyond his control,
the agency found that M1's description of the events of July 11, 2007,
indicated that complainant had been negligent in his duties to oversee
the delivery and offloading of the mails and had falsely reported that
the dock was clear of mail, when mail containers were still on the docks.
The agency found that complainant had not established a prima facie case
of race, color or sex discrimination.
Regarding complainant's claim of reprisal, the agency found that
complainant previously opposed an agency practice he believed to
be discriminatory, but the agency also found that M1, the official
responsible for placing complainant on emergency off-duty status, was
unaware of complainant's prior protected activity. The agency therefore
found that complainant had not established a prima facie case of reprisal
discrimination.
Moreover, the agency found that even if complainant had shown a prima
facie case of discrimination on any basis, the agency found that the
reasons cited by M1 for issuing the notice described in claim (1)
were legitimate and not motivated by complainant's race, color, sex
or reprisal. The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
On appeal, complainant argues that M1 was not the agency official
responsible for taking the disciplinary actions against him. Rather,
complainant identifies the Plant Manager, M2, as the agency official who
directed M1 to issue both the emergency off-duty placement and the notice
of proposed letter of warning in lieu of suspension. Complainant argues
that M2 was aware of complainant's prior protected activity that involved
E1, an employee with a disability that complainant believed the agency
subjected to discrimination. Complainant points out that M1 had never
placed any supervisor on emergency off-duty status for delayed mail
until after July 11, 2007. Specifically, M1 issued discipline to S2
(another supervisor and complainant's co-worker) for missing delivery
connections, but that was not until July 18, 2007 - after M1 had punished
complainant the week before. Complainant further points out that the
agency has procedures in place for delivery of mail when the mail misses
the departing delivery vehicles and that those arrangements for extra
transport vehicles had been used on 154 occasions, indicating that such
delays are not uncommon.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
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 or
she 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
As a preliminary matter, we find the agency's dismissal of the basis
of reprisal in claim (2), pursuant to 29 C.F.R. � 1614.107(a)(5) to be
improper under the circumstances of the complaint. We find that the
August 15, 2007 proposal to issue discipline to complainant, following
within weeks after complainant had participated in discussions with
agency officials surrounding the treatment of E1, may be presumed to
deter complainant from such protected activity in the future and to
punish him for expressing his opposition to what he believed to be
disability discrimination. Nevertheless, we find that the agency's
analysis of the complaint with respect to the basis of reprisal, to be
applicable to claim (2) as well as to claim (1), as both actions were
initiated by M1. Furthermore, we find that the bases of race, sex, and
color were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(5),
because the claim was a proposed action.
In the instant case, we find the record supports the agency's final
decision finding no discrimination. We observe that the affidavits
of M1 and M2 indicate that M1 initiated the agency actions of July 12,
2007, and August 15, 2007, regarding the placement of complainant on
emergency off-duty status and the proposed letter of warning in lieu of
14-day suspension for his neglect of duty and falsely reporting the dock
clear of mail on July 11, 2007.
We find no evidence that M2 played any role in the events of either claim
(1) or claim (2) as complainant suggests. We find that M2 also denies any
knowledge of complainant's prior protected activity, as well as denying
any role in the M1's decision to take the corrective actions he did.
We do not find that complainant has established that his race, color
or sex played any role in the agency's decision to issue the notice
described in claim (1).
We concur with the agency that complainant failed to show the necessary
nexus between complainant's prior protected activity (specifically,
complainant's opposition to discriminatory agency practices or policies)
and the personnel actions initiated following the delayed unloading and
delivery of mail on July 11, 2007. Specifically, M1 denies that he was
aware of complainant's protected activity and we find no evidence to the
contrary. Accordingly, M1 could not have been motivated by reprisal in
either placing complainant on emergency off duty status or in issuing
the proposed letter of warning. Significantly, we note that M3 is
identified by M1 as involved in the decision to instruct complainant to
return to work in August 2007. M3 is also identified by complainant
as an official with whom complainant discussed the treatment of E1,
yet M3 denies any knowledge of complainant's prior protected activity.
We are unable to conclude that M3 played a material role in M1's decision
to issue the letter of August 15, 2007 in which M1 proposed discipline
for the events of July 11, 2007. Accordingly, we find that complainant
has not established a prima facie case of reprisal.
We AFFIRM 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
February 20, 2009
__________________
Date
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0120090238
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120090238