John Jones, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 27, 2009
0120092731 (E.E.O.C. Oct. 27, 2009)

0120092731

10-27-2009

John Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John Jones,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092731

Agency No. 1C-191-0047-07

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's April 20, 2009 final decision concerning an equal

employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

During the period at issue, complainant was employed as an Electronic

Technician at the agency's Philadelphia, Pennsylvania Processing and

Distribution Center.

On January 11, 2008, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against

him on the bases of race (Caucasian), disability (tendon dysfunction),

and in reprisal for prior protected activity when:

(1) on August 17, 2007, he was issued a Notice of Suspension of 7 Days

or Less;

(2) on or about October 25, 2007, he was issued a Notice of Suspension

of 14 Days or Less;1

(3) on or about October 11, 2007, he was issued a Notice of Suspension

of 14 Days or Less;

(4) on or about January 12, 2008, he was issued a Notice of Fourteen

(14) Day Suspension; and

(5) on or about February 27, 2008, he was placed in an off duty status.2

Following the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). On March 24, 2009, the AJ issued an order, dismissing the

formal complaint from the hearing process. In her Order, the AJ found

that because complainant did not show cause for his failure to follow

the AJ's orders, she remanded the case to the agency for issuance of a

final decision. Therefore, the agency issued the instant final decision

on April 20, 2009.

In its April 20, 2009 final decision, the agency found no discrimination.

The agency determined that complainant did not establish a prima facie

case of race, disability and reprisal discrimination.3 The agency further

found that assuming, for the sake of argument, complainant established

a prima facie case of race, disability and reprisal discrimination,

management articulated legitimate, nondiscriminatory reasons for its

actions which complainant failed to show were a pretext.

Regarding claim (1), one of complainant's tour supervisors (S1) stated

that on August 17, 2007, he issued complainant a Notice of Suspension of

7 Days or Less for unscheduled absences. The record reflects that on

August 12 and 13, 2007, complainant did not report to work. S1 stated

that the agency scheduled an August 16, 2007 Pre-Discipline Interview

(PDI) "for the reason of Failure to Meet the Attendance Requirement

Unscheduled Absences (AWOL). At that time the complainant did not

provide any evidence for the unscheduled absences." S1 further stated

that he took complainant's following prior discipline into consideration:

an October 20, 2006 Letter of Warning for AWOL and absent from overtime;

his 14-Day Suspension issued on July 20, 2006 for bringing an unauthorized

weapon on postal property and creating a hostile work environment; and

his 7-Day Suspension issued on July 7, 2006 for failure to observe safety

rules and regulations and failure to follow instructions. S1 stated

that during the relevant time he was unaware of complainant's prior

protected activity. Furthermore, S1 stated that complainant's race and

disability were not factors in his determination to issue complainant

the August 17, 2007 Notice of Suspension of 7 Days or Less.

The Tour Manager (TM) stated that he was the concurring official

concerning complainant's August 17, 2007 Notice of Suspension of 7 Days

or Less based on his unscheduled absences. TM stated that complainant was

given a PDI on August 16, 2007. Specifically, TM stated that complainant

"failed to call-in (notify) his place of employment that he would not

be reporting for duty. During the PDI he stated he called in the eRMS

(automated system) and they apparently didn't record it and had a doctor's

note stating he was unfit for duty for the two days. The next day he

brought in a different doctor's note stating he was confined to bed and

totally unable to call work. An entirely different version that the

day before." TM stated that complainant's race, disability and prior

protected activity were not factors in management's determination to

issue him the Notice of Suspension of 7 Days or Less.

Regarding claim (3), TM stated that he was the concurring official

concerning complainant's October 11, 2007 Notice of Suspension of 14 Days

or Less. TM stated that complainant was issued the subject suspension

for "leaving his assignment without permission." TM stated that

complainant also used government equipment without approval. TM stated

that on October 6, 2007, complainant was given a PDI. TM stated that

complainant "simply stated he apparently just left his assignment to do

what he felt he wanted/needed to do at that moment regardless of what

his assignment was." TM stated that complainant's prior discipline was

taken into consideration prior to issuing him the October 11, 2007 Notice

of Suspension of 14 Days or Less.

Regarding claim (4), the Supervisor Maintenance Operations (SMO)

stated that he was the deciding official to issue complainant a Notice

of Fourteen (14) Day Suspension dated January 12, 2008 for failure to

follow instructions, leaving assignment without permission, delaying

the mail and leaving the facility without notifying management.

Specifically, SMO stated that on December 6, 2007, complainant was

assigned to DIOSS 24 and Reactive Maintenance, and at approximately 1:00

p.m., complainant called eRMS and requested two hours of Family Medical

Leave, Leave Without Pay and left the facility. SMO stated, however,

complainant "never notified Management that he was leaving. By not

notifying Management that he was leaving, management was not aware that

complainant's Reactive Assignment was not covered until complainant did

not respond to pages for down equipment, therefore Delaying the Mail.

By not notifying Management that complainant was leaving, if there was

an emergency and the building had to be evacuated, complainant would

have been listed as a missing person. Complainant also failed to notify

Management that he was not taking his scheduled lunch at 12:00 P.M. and

therefore taking leave at 1:00 P.M. was premeditated on his part."

Complainant contended that he was given new and specific directions from

SMO regarding his leave on FMLA Certification, when SMO told complainant

to call the system, which generates a leave slip that he signs at a later

date; and that complainant therefore had followed SMO's directions

on December 6, 2007. However, SMO stated "it was explained to the

complainant that he could no longer walk into the supervisor's office

and leave a slip on the supervisors desk requesting FMLA protected leave

and leave without notifying his supervisor as he did on 12/1/07."

Regarding claim (5), SMO stated "I submitted a request to put complainant

on Emergency Placement." Specifically, SMO stated that on February 24,

2008, he received an email from a contractor EEO investigator stating

that complainant "'is on the edge' and the statement / threat made by

[complainant] to her, 'They are pushing me to do something to them or

myself,' along with the fact that he is going to his doctor to get

medication, I am requesting that he by put on Emergency Placement

Immediately." SMO stated that on February 13, 14 and 21, 2008,

complainant requested I.O.D. for work-related stress; and when complainant

reported to work on February 24, 2008, management was unaware of the

statements complainant made to the EEO investigator and later complainant

was sent home by a named supervisor "paid for that day, and instructed

to return to work on Wednesday 2/27/08, his next scheduled work day,

when he would be scheduled for a (FFD) Fitness-for-Duty Examination for

his I.O.D. claim of work related stress."

SMO stated that in light of the statements complainant made to the EEO

investigator, he felt that "it would be in the best interest of the

United States Postal Service and all the employee's that work at the

Philadelphia P&DC that we forgo the FFD at this time, and [complainant]

be put on Immediately on Emergency Placement."

The Manager Maintenance Operations (MMO) stated that he was the

concurring official concerning complainant being placed in off duty

status. Specifically, MMO stated that complainant "violated the Zero

Tolerance Policy by making a threat. I made the decision based on the

safety and security of all employees within the Philadelphia P&DC."

On appeal, complainant argues that the AJ improperly denied his request

for a hearing on the grounds that he had abandoned the prosecution of

his case. Complainant states "I was denied my right to proceed based

solely on the fact that I did not provide answers to an agency request.

I informed the court in a timely fashion that I had lost the agency's

request and therefore was unable to complete it."

In response, the agency argues that assuming complainant's assertion

that he lost the discovery request was correct, complainant nonetheless

"never informed the agency of his dilemma, much less request a copy of the

discovery request so that he could respond to it. He asserts that he had

informed 'the court in a timely fashion that [he] had lost the agency's

request,' but if he had, clearly the Chief AJ would have addressed that

point in her Sanctions Order. That she did not, demonstrates that he

is raising this excuse for the first time."

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he 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).

In the instant case, we find that after a careful review of the record,

the agency articulated legitimate, nondiscriminatory reasons for its

actions. Complainant has not demonstrated that these reasons were a

pretext for discrimination.

Moreover, we note that complainant, on appeal, argues that the AJ

improperly dismissed his formal complaint from the hearing process and

that he was unable to complete the agency's discovery requests because

he lost them. We find that the record indicates that the AJ properly

dismissed complainant's complaint from the hearing process for the reasons

set forth by the AJ. Additionally, we determine that the agency properly

conducted an adequate investigation of the instant complaint. Finally,

we determine that complainant has provided no persuasive arguments

indicating any improprieties in the agency's findings.

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.

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

October 27, 2009

__________________

Date

1 The record reflects that in its final decision, the agency determined

that the matter raised in claim (2) "does not exist" because complainant

was not issued discipline on that date. The agency stated that

complainant indeed was issued discipline on October 11, 2007, for an

October 5, 2007 incident, as reflected in our discussion of claim (3),

below. Complainant does not dispute the agency's assessment of this

issue on appeal, and the Commission therefore will not further address

the matter identified as "claim (2)."

2 The record reflects that claims (4) - (5) were later amended to the

instant complaint.

3 For purposes of analysis only, and without so finding, the Commission

presumes that complainant is an individual with a disability within the

meaning of the Rehabilitation Act.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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