0120142106
05-25-2016
Jesse A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jesse A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142106
Agency No. 1C-452-0002-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 18, 2014 final decision concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Mechanic at the Agency's Cincinnati Network Distribution Center in Cincinnati, Ohio.
On February 6, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (white), disability, and age (over 40) when:
1. on an unspecified date, he had to get permission or call to notify when using the restroom;
2. on October 7, 2012, he was charged Absent Without Leave (AWOL) for three hours; and
3. on October 21, 2012, he was issued a Fourteen-Day suspension for being AWOL. 2
After the investigation of the 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). Complainant initially requested a hearing. However, the AJ issued a document entitled "Dismissal Order" dated March 12, 2014, dismissing Complainant's hearing request, finding that Complainant had not complied with the AJ's orders. Consequently, the Agency issued the instant final decision on April 18, 2014, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency dismissed claim 3 for failure to state a claim, pursuant to 29 C.F.R. � 1614.104. However, the Agency nonetheless proceeded to address claims 1 - 3 on the merits, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex, color, disability, and age discrimination.3 The Agency further found that assuming arguendo Complainant established a prima face case of race, sex, color, disability, and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Supervisor Maintenance Operations, also Complainant's supervisor, stated that in regard to claim 1, Complainant was not required to ask for permission to go to the restroom. Specifically, the supervisor stated when Complainant or any employee "is working alone in the Battery Room, we ask the employee to call the stock room to have someone replace them in their absence. We normally have two mechanics in the Battery Room and under those situations, they could leave when needed."
The supervisor stated that all employees who are rotated in the Battery Room are given the same instruction because "the duties performed in the battery room [are] critical to Mail Processing Operations and we do not want employees standing around waiting on an employee to return to get needed equipment."
The Manager, Maintenance Operations denied Complainant's allegation that he was required to receive permission or call to notify when using the restroom. The Manager stated "due to this being critical to Mail flow operation to be able to get in and out of the batter room quickly due to time limits on moving the mail through the building. We require any employee working in the Battery Room to call the control room when they have to leave for a period of time. So a zone person can cover until they return."
Regarding claim 2, the supervisor stated that on October 7, 2012, he charged Complainant 3 hours of AWOL "because he is scheduled to report at 4:30 p.m. and he called me at 7:30 p.m. He did not give a reason for his late call. He went home early on Thursday October 4, 2012, on FMLA [Family Medical Leave Act]. He was off Friday and Saturday and I did not hear from him until Sunday when he called in and asked if he needed to call that day since he took off on FMLA Thursday. I told him that he needed to. He didn't contact me until 3 hours after the start of the Tour."
Further, the supervisor stated that all employees are aware of the IVR (call-in) requirements prior to the start of their tour and Complainant "called in well after his reporting time. [Complainant] never made any mention of any extenuating circumstances that may have kept him from making the phone call prior to the start of the tour."
Regarding claim 3, the supervisor stated that on October 21, 2012, he issued Complainant a 14-Day suspension for AWOL "for not following the call-in procedures. The 14-day was the next step in discipline." The supervisor stated that he conducted a Pre-Disciplinary Interview (PDI) to provide Complainant an opportunity to give an explanation for his conduct. Specifically, the supervisor stated that Complainant stated that he did not call in "because he was having trouble getting through the IVR system. But, when he called me that day, he did not mention he was having problems with the IVR. He didn't give any reason until the PDI." Moreover, the supervisor stated that Complainant's race, sex, color, disability, and age were not factors in his decision to issue him the 14-Day suspension.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
Because we affirm the Agency's finding of no discrimination concerning claim 3 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds.4
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 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
May 25, 2016
__________________
Date
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.
2 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1-3.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
4 On appeal, Complainant does not challenge the March 6, 2013 partial dismissal issued by the agency regarding one other claim (that he was discriminated against on the bases of race, sex, color, disability and age when on April 16, 2012, he was issued a 7-Day suspension). Therefore, we have not addressed this issue in our decision
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