0120131209
06-04-2013
Joseph M. Wajda, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Joseph M. Wajda,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131209
Agency No. 1J-602-0011-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 31, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Support Clerk at the Agency's Palatine Processing and Distribution Center in Palatine, Illinois.
On April 30, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of sex (male) when:
1. on January 14, 2012, a female co-worker was promoted ahead of him, which allows the female co-worker to choose her days off before him; and
2. on February 28, 2012, he was issued a Letter of Warning for Conduct Unbecoming a Postal Employee.
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On December 31, 2012, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of sex discrimination. The Agency further found that assuming, for the sake of argument, that Complainant had established a prima facie case of sex discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the Manager, Maintenance Operations Support stated that during the relevant time, the named female co-worker (CW) and all other Level 6 and Level 7 Management Support Clerks (MSC)' bid assignments were abolished effective October 14, 2011; and they were all in duty assignments without current start times or non-scheduled days. The Manager stated that in accordance with Article 38 of the National Agreement between the Agency and the union, the clerks' former duty would have to be posted and award to employees on the preferred assignment eligibility register based on seniority.
Further, the Manager stated that at the time, CW was promoted from a Level 6 to a Level 7 MSC position, and that Complainant was already a Level 7 MSC. The Manager stated that through the bidding process, CW was awarded the duty assignment with Saturday and Sunday as non-scheduled days. The Manager stated that at the time of CW's promotion, Complainant "was already holding a position with the same level. The bidding process for which [CW] was a participant as well as the Complainant due to negotiated criteria for awarding of duty assignment provided for her selection of days off to precede those desired days of the Complainant. That criteria being is 'Installation Craft Seniority' prevails as the first prerequisite. [CW's] Installation Craft seniority ranks her senior to that of the Complainant."
Moreover, the Manager stated that Complainant "chooses not to accept the fact that he is junior to [CW] due to 'Installation Craft Seniority' and not entitled to 'Preferred Assignments' ahead of [CW] or any other employee that is senior to himself as per Article 38.5.A.3b."
The Manager, Maintenance (Lead) stated that during the relevant period, he was the Department Head of Complainant's department. The Department Head stated that CW was awarded the Level 7 position after the first person on the Promotion Eligibility Register declined the offer. The Department Head stated that during the relevant time, CW was already on Tour 2 with Saturday and Sunday as her non-scheduled days, and that only her level and start time changed.
Further, the Department Head stated that Complainant "was already a level 7 maintenance support clerk and had the non-scheduled days of Saturday and Sunday. When the bid for the posted job was awarded to the female co-worker, they both had the same non-scheduled days because I did not change off days for anyone. This way no harm would be done to any employee."
Regarding claim 2, the Manager stated that on February 28, 2012, he issued Complainant a Letter of Warning for Conduct Unbecoming a Postal Employee. Specifically, the Manager stated that on February 16, 2012, Complainant had a confrontation with a named employee as they passed each other on the workroom floor. The Manager stated that Complainant came to the Manager following the verbal confrontation and "presented the issue on the premise that the employee was harassing him. Investigation revealed that the complainant had previously had a confrontation with CW ([named employee's]'s spouse) related to what she was doing or not doing. The two are coworkers in the same work area and the complainant expressed irritation that he had to do work that he thought [CW] should have been doing. He attempted to direct other employees to her work area so that she would have to render the necessary services they required. Some words were allegedly exchanged."
Further, the Manager stated that on February 24, 2012, he also issued the named employee a Letter of Conduct for Conduct Unbecoming a Postal Employee. The Manager stated that both Complainant and named employee were in violation of Sections 665.16 and 665.24 of the Employee and Labor Relations Manual. The record reflects that Section 665.16 states "employees are expected to maintain harmonious working relationships and not to do anything that would contribute to an unpleasant working environment." The record further reflects that Section 665.24 states "similarly, there must be no tolerance of harassment, intimidation, threats, or bullying by anyone at any level."
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, 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 management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. 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.
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.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
June 4, 2013
__________________
Date
1 On appeal, Complainant does not challenge the September 12, 2012 partial dismissal issued by the agency regarding two other amended claims (that he was discriminated against on the basis of sex when on unspecified dates, management assigned an unfair and inequitable distribution of work load to him, and he was required to punch in on the time clock in the parts room and leave it in the parts room's rack while another employee was not required to do the same). Therefore, we have not addressed these issues in our decision
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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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