0120090025
01-12-2009
Joseph O. Panugaling, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph O. Panugaling,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090025
Agency No. 4G-770-0378-07
Hearing No. 460-2008-00083X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 28, 2008 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
During the period at issue, complainant was employed as a City Carrier
at the agency's James Griffith Station in Houston, Texas.
On September 24, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him on
the bases of race (Filipino), national origin (Asian), sex (male), color
(brown), age (over 40), and in reprisal for prior EEO activity when:
1. on October 1, 2007, he was called into the office for a 14-day
suspension1; and
2. on July 25, 2007, he was harassed when he was told carry another route
and was called into the office the next day and asked why he went into
penalty overtime when his route was under two hours;
On October 19, 2007, the agency issued a partial dismissal. The agency
accepted claim 1 for investigation. The agency dismissed claim 2 pursuant
to 29 C.F.R. 1614.107(a)(1), for failure to state a claim.
By letters dated November 11 and 13, 2007, complainant requested that
his formal complaint be amended to include the following claim that
he was discriminated against on the bases of race, national origin,
and color discrimination when:
3. on November 6, 2007, he was issued a Notice of Removal effective
December 14, 2007.2
The record further reflects that the agency granted complainant's request
to have his formal complaint amended to include claim 3.
At the conclusion of the investigation of claims 1 and 3, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). On July 23, 2008, the AJ
issued an order, dismissing the formal complaint from the hearing process.
In her Order, the AJ concluded that because complainant failed to follow
her numerous discovery orders, she remanded the case to the agency for
issuance of a final decision. Therefore, the agency issued the instant
final decision on August 28, 2008.
In its August 28, 2008 final decision, the agency found no discrimination.
The agency concluded that complainant did not establish a prima facie case
of race, national origin, sex, color, age and reprisal discrimination.
The agency further found even assuming, for the sake of argument only,
complainant established a prima facie case of race, national origin,
sex, color, age and reprisal discrimination, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.
Regarding claim 1, complainant's manager (M1) stated that she was the
deciding official to issue complainant a 14-day suspension for failure
to follow instructions and unauthorized overtime. M1 stated that
complainant had continued to go into unauthorized overtime regardless of
the instructions he was given. M1 stated that each route has a different
volume and every morning a supervisor would count the mail for the route.
M1 stated "a split is 15 minutes of delivery volume, so if, for example,
we take an hour away from a route, we give four splits to someone else."
M1 stated that the standard for casing is 18 letters and 8 flats per
minute, and a carrier's office time is calculated by how much mail there
is to case. M1 stated that complainant's base volume was "425 letters,
613 flats, 1038 pieces, and from that he's supposed to be in the office
from 7:30 to 9:38. He's supposed to be back in at 3:55 p.m., he has
five minutes to put his accountables away, then he clocks out at 4 p.m."
Further, M1 stated that complainant "stays too long casing, and doesn't
get to the street on time. Then he goes into unauthorized overtime,
he would call in the afternoon and say he still has too much left
to be back at 4. I would tell him to continue to deliver the mail,
and we'll deal it in the morning." M1 stated that on September 13,
2007, the day of an EEO mediation, she and complainant's supervisor
(S1) instructed complainant to deliver mail until the mediation started
at 11 a.m. M1 stated that she and S1 "pulled his scan points, from the
very beginning of the route, and he should have scanned at the beginning,
but he didn't scan until about 1 p.m., after the EEO [mediation]. He said
he was hungry and went to lunch, and we asked for how long, they only get
30 minutes for lunch. That made him go into unauthorized overtime, and
we took time off his route to compensate for the unauthorized overtime."
M1 stated that on August 31, 2007, she and S1 instructed all carriers,
including complainant, to hold to eight hours "so if a route is over
volume, then you have to add PS Form 1571 to cut the mail back to
the next day. But [complainant] was not over his reference volume,
and the variance to volume should show that. But he cut back, which
was unauthorized. I asked him what was on the floor, where he had
left mail, and said absolutely not, you will go and case that and be
back on time. He was already leaving late. His route was already not
at his reference count, he cut back on his own, and never submitted
the 1571." Furthermore, M1 stated that complainant's race, national
origin, sex, color, age and prior protected activity were not factors
in her determination to issue him a 14-day suspension.
S1 stated that on the day of the EEO mediation, she asked complainant if
he needed help, and "he repeatedly said he would do the best he could,
but he went into unauthorized overtime." S1 further stated she does
not recall what happened on August 31, 2007 concerning complainant
"but if he was told to hold his route to eight hours and he did not,
he failed to follow the instructions of his supervisor."
Regarding claim 3, M1 stated that she was the deciding official to
issue complainant a Notice of Removal dated October 30, 2007, for
unsatisfactory work performance and failure to follow instructions.
The record reflects that on October 3, 4 and 5, 2007, complainant worked
unauthorized overtime and failed to follow M1's instructions. M1 stated
that she took the following factors into consideration when issuing
complainant a Notice of Removal: complainant's Letter of Warning dated
April 13, 2006 for unsatisfactory work performance and failure to follow
instructions; and his Notice of 14-Day Suspension dated September 27, 2007
for failure to follow instructions and unsatisfactory work performance.
S1 stated that while she had no role with the issuance of the Notice of
Removal, M1 "did it, although I agreed with it, because of his usage
of unauthorized overtime." Furthermore, S1 stated that she did not
discriminate against complainant based on his race, national origin,
sex, color age or prior protected activity.
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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions which complainant did not prove were a pretext for discrimination,
and that complainant has not demonstrated that these reasons were a
pretext for discrimination.
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 3 because the preponderance of the evidence of record does
not establish that discrimination occurred.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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
January 12, 2009
__________________
Date
1 The record reflects that complainant filed a grievance concerning his
14-day suspension. On December 6, 2007, complainant's grievance was
settled, and as a result the 14-day suspension was reduced to a 7-day
paper/no time served suspension.
2 The record reflects that complainant filed a grievance concerning
his Notice of Removal. On March 11, 2008, complainant's grievance
was settled, and as a result the Notice of Removal was reduced to a
Letter of Warning for Unsatisfactory Work Performance/Failure to Follow
Instructions/Unauthorized Overtime.
3 On appeal, complainant does not challenge the October 19, 2007 partial
dismissal issued by the agency regarding claim 2. Therefore, we have
not addressed this issue in our decision.
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0120090025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120090025