0120091541
08-03-2009
Jose Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091541
Agency No. 1H-328-0019-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 13, 2009 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.
During the period at issue, complainant was employed as a Mail Processing Machine Operator, PS-05, at the agency's Orlando Processing and Distribution Center in Orlando, Florida.
On July 14, 2008, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On August 25, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of reprisal for prior EEO activity when:
(1) on or about July 13, 2008, his supervisor told him to leave the building;
(2) on July 14, 2008, he was given an investigative interview and subsequently issued a 7-Day Suspension on July 31, 2008;
(3) on July 6, 2008, his supervisor accused him for talking to his co-workers for 25 minutes and yelled at him in front of his co-workers;
(4) on or about the second week of January 2008, his supervisor made him work outside of his medical restrictions when he had to wait to give her his leave slip; and
(5) during the last quarter in 2007, his supervisor violated his medical restrictions when she instructed him not to leave until the Tour 1 Mail Handler relieved him at midnight.
On September 3, 2008, the agency issued a partial dismissal. The agency accepted for investigation claims (1) and (2). The agency dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency dismissed claims (4) and (5) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
At the conclusion of the investigation concerning claims (1) and (2), 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 on January 13, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its January 13, 2009 final decision, the agency found no discrimination concerning claims (1) and (2). Specifically, the agency found that complainant did not establish a prima facie case of reprisal discrimination. The agency further found that assuming, for the sake of argument, complainant established a prima facie case of reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination. Finally, the agency determined that in its September 3, 2008 partial dismissal, it properly dismissed claim (3) for failure to state a claim and claims (4) - (5) on the grounds of untimely EEO contact.
Regarding claim (1), complainant's supervisor (S1) denied telling complainant to leave the building on July 13, 2008. Specifically, S1 stated that on July 13, 2008 "at approximately 2240 hrs because I was looking for him a short time before that and could not locate him. I asked [complainant] 'where have you been?' [Complainant] began yelling and cursing. I asked him to please stop cursing and to lower his voice. He continued. I again instructed him to lower his voice and to stop cursing." S1 stated that at that point complainant called her a "fucking liar" and refused to accompany her to the office when she asked him to do so. S1 stated that immediately, she called the Manager Distribution Operations (MDO) and asked him to come to the workroom facility. S1 stated that upon his arrival, MDO asked complainant "several times to calm down and to lower his voice because he was being disruptive on the work room floor." S1 stated that after MDO instructed complainant to go to the office, complainant requested a union steward. S1 stated that MDO "instructed him to clock on the correct operation to see the steward and he did. Shortly after that he went home as he usually does 2 hours early for FMLA reason." Furthermore, S1 stated "I did not tell him to leave the build he was not put on a (16.7) Emergency Placement in Off-Duty Status."
MDO stated that S1 asked him to come to the workroom floor and told him that complainant "had cursed at her several times because she had inquired on why he was missing from his assignment at the JCP Tower." MDO further stated that complainant "told me in a very loud voice that [S1] was picking and lying on him. He also stated that he was going to call the police. I asked him several times to calm down and to lower his voice." MDO stated that after complainant asked for a steward, he told him "to make the proper move with his badge and to report to the mail Handler Shop Steward. [Complainant] went to the Shop Steward's booth and he ended his tour at 2300 hrs. as he usually does using 2 hours of FMLA."
Regarding claim (2), S1 stated that on July 14, 2008, she conducted the investigative interview with complainant and a steward, and subsequently issued complainant the 7-Day Suspension on July 31, 2008. S1 stated that she made the determination to issue complainant a suspension based on the following factors: her statement and the July 13, 2008 incident. S1 stated that service talks are given on a daily basis and Zero Tolerance "is one of the topics." S1 stated that she relied on the Postal Office Policy on Zero Tolerance and Section 665.24 "Violent and/or Threatening Behavior" of the Employee and Labor Relations Manual (ELM) in making her determined to issue complainant the 7-Day Suspension. Moreover, S1 stated that complainant's prior protected activity was not a factor in her determination to issue him a 7-Day Suspension.
MDO stated that he was the concurring official concerning complainant's 7-Day Suspension. MDO stated that complainant "verbal barrage and threatening outburst to [S1]," the Postal Office Policy on Zero Tolerance and witness statement led S1 to issue the discipline.
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 the agency articulated legitimate, nondiscriminatory reasons for its actions. On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. The essence of complainant's appellate argument is that the agency's articulated non-discriminatory reason for its actions was merely a pretext to mask the real motive for severe and disproportionate disciplinary action for a minute offense: to discourage complainant from pursuit of the EEO complaint process, and to demonstrate to other employees what would occur if they pursued EEO claims. However, the Commission discerns nothing in the record that supports complainant's assertion in this regard.
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 concerning claims (1) and (2) because the preponderance of the evidence of record does not establish that discrimination occurred.1
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
August 3, 2009
__________________
Date
1 On appeal, complainant does not challenge an agency September 3, 2009 partial dismissal concerning claims (3) - (5). Therefore, we have not addressed these issues in our decision.
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0120091541
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091541