Jonathan A. Berry, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 25, 2009
0120081354 (E.E.O.C. Sep. 25, 2009)

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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