0120081354
09-25-2009
Jonathan A. Berry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jonathan A. Berry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081354
Agency No. 4J-604-0097-07
DECISION
On January 22, 2008, complainant filed an appeal from the agency's
December 6, 2007, 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. The appeal is timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). 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 Full-Time Carrier Technician, at the Moraine Valley Post Office
in Bridgeview, Illinois. The record reveals that complainant entered
into a Last Chance Agreement (LCA) with the agency on May 5, 2006.
The terms of the LCA provided that complainant abide by the agency's
rules and regulations. The LCA also specified that complainant was
required to maintain an acceptable attendance record. The LCA was
in effect for fifteen months after it was signed. On July 19, 2006,
complainant was issued a Notice of Removal for failing to abide by
the terms of the LCA when he was charged with unauthorized curtailment
of mail. After complainant filed a grievance, the July 19, 2005 Notice
of Removal was removed from his record and the May 2007 LCA was extended
to August 6, 2007. On February 21, 2007, complainant was issued another
Notice of Removal for violating the terms of the LCA. Specifically,
complainant's supervisors determined that on December 6 and 11, 2006,
complainant failed to properly handle accountable mail, and that on
January 6, 2007, complainant reported late for work and did not report
his tardiness as required. Complainant filed a grievance on the February
21, 2007 Notice of Removal, but ultimately the grievance was denied.
Complainant's removal was effective April 20, 2007.
On July 17, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of his race (African American),
sex (male), and color (black) when, effective April 20, 2007, he was
removed from the Postal Service.
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). In accordance with
complainant's request, 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.
CONTENTIONS ON APPEAL
On appeal, complainant's principal argument is that he should have been
issued corrective discipline rather than punitive discipline, and that
persons outside of his protected groups were issued corrective discipline
while he was issued punitive discipline. Complainant also argues that
the agency engaged in a continuing violation dating back to the initial
discipline issued in 2005.
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). 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); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). 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, 143 (200); 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); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
race, sex, and color discrimination, we find that the agency articulated
legitimate, nondiscriminatory reasons for its action. Specifically,
complainant's supervisor (S1) determined that on December 6 and 11, 2006,
complainant returned two accountable mail pieces for redelivery the next
day; however, he failed to scan in the pieces to indicate that he had
attempted to deliver them. When S1 inquired about complainant's failure
to do so, complainant stated that he did not work on December 6, 2006,
and that on December 11, 2006, his scanner was not properly functioning.
When the S1 confronted complainant with the fact that neither of those
statements were true, complainant stated that he did not deliver the mail
because there were no names listed on the mailboxes. The other incident
that influenced S1 to terminate complainant occurred on January 6, 2007.
Complainant was tardy to work and filed a leave slip for .36 hours of
annual leave. Complainant was required to call the automated system
to report his tardiness. Complainant contended that he did; however,
complainant was unable to demonstrate that he did so. As a result of
these incidents, the agency determined that complainant violated the
relevant terms of the LCA and terminated complainant's employment.
Because we have found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, we now turn to complainant's
burden to prove that the agency's articulated reasons were a pretext
for race, sex, or color discrimination. We find that complainant has
failed to do so. Complainant argues that other employees were not
treated similarly to him in that they were disciplined in a corrective
manner rather than a punitive manner. We find that this distinction does
not sufficiently call into question the agency's proffered reason for
terminating complainant's employment. The record reveals that, of the
co-workers identified by complainant who were under S1's supervision,
none violated the terms of an LCA as complainant did. Accordingly, we
find that complainant failed to establish that the agency was motivated
by discriminatory animus when complainant was terminated. In the absence
of any other evidence to support a finding of pretext, we conclude that
complainant has not established his claim of discrimination.
Although complainant attempts to argue that the agency's actions from 2005
to the present establish a continuing violation, we find that complainant
has failed to demonstrate that this is the case. The Supreme Court has
held that a complainant alleging a hostile work environment will not
be time-barred if all acts constituting the claim are part of the same
unlawful practice and at least one act falls within the filing period.
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
The Court further held, however, that "discrete discriminatory acts
are not actionable if time barred, even when they are related to acts
alleged in timely filed charges." Id. In this case, we find that each
disciplinary action was a discrete act and therefore, each Notice of
Removal and the issuance of the LCA are not actionable in this case.
Even considering these past incidents as background evidence, because
the Commission has determined that complainant has failed to establish
that the April 20, 2006 Notice of Removal was motivated by discriminatory
animus, we find that complainant has failed to establish that the agency
discriminated against complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the FAD
finding that complainant failed to establish that he was discriminated
against as he alleged.
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
September 25, 2009
Date
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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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