0320160013
04-08-2016
Judson G.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (New York Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Judson G.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Petition No. 0320160013
MSPB No. NY0752130134I1
DECISION
On November 24, 2015, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission CONCURS with the MSPB.
BACKGROUND
Petitioner worked as a Manager, Customer Services at the Agency's Williamsbridge Station facility in Bronx, New York. Petitioner alleged that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when the Agency removed him on February 15, 2013.
On March 10, 2012, Petitioner directed a Transitional Employee (TE) to drive a postal vehicle to deliver mail, despite the fact that TE's mail route was a walking route and TE was a "Non-Driving" mail carrier. TE hit a parked vehicle and the bumpers of the two vehicles became entangled. When TE called Petitioner to inform him of the accident, he came to the scene with a Supervisor, Customer Services (SCS). Petitioner told TE that he would "take care of it" and instructed TE to continue delivering the mail on her route.
Petitioner and SCS worked to dislodge the postal vehicle from the parked car for approximately one hour. SCS stated that she would return to the station to begin the paperwork to report the accident, Petitioner informed her that he would complete the paperwork. Since the vehicle owner (VO) had not been identified, Petitioner left a note on the windshield informing VO to call the Williamsbridge Station and ask for Petitioner. After Petitioner and SCS returned to the station, SCS stated that she would like to interview TE about the accident. Petitioner again informed SCS that he would write the accident report and instructed SCS not to write one.
On March 11, 2012, VO saw the damage to his car and filed a police report. On March 12, 2012, VO saw TE delivering mail and asked her who Petitioner was. When VO informed TE that a postal vehicle had hit his car, TE informed him that she was the one who hit his car. Later that day, Petitioner met with VO to discuss the repairs to his car. Petitioner told VO to deal with him on getting his car fixed because he did not want TE to lose her job. VO faxed an estimate of repairs totaling $2,690.78. Petitioner called VO and stated that he could get his car fixed for about $800-$900; however, VO responded that he wanted to get his car repaired at his repair shop. Shortly after their conversation, a woman claiming to be Petitioner's wife called VO and tried to convince him to "work with" Petitioner to get the repairs completed. This phone call from Petitioner's alleged wife made VO uncomfortable, who then called the Agency's Torts Claim Coordinator (TCC) on March 16, 2012. TCC sent VO the necessary forms to file a claim for his damages and searched the Agency's database for the accident report but did not find one.2
On March 19, 2012, Petitioner's supervisor (S1) was contacted about the fact that there was no report of this accident. When S1 asked Petitioner about this accident, Petitioner responded that he was not aware of any accident and that he had not spoken with any customer about any accident. Initially, S1 did not believe that TE was involved in this accident because she was a non-driving employee; however, TE admitted to S1 that she had been involved in an accident. Later that night, Petitioner sent TE the following text messages, "[t]hey called in the accident to the post office today;" "[y]ou should not have told him nothing;" "[n]ow I don't know what to do the postmaster is involved;" and "[h]e wants me fires [sic]."
On March 20, 2012, S1 spoke with VO, who confirmed that he had spoken with Petitioner about the accident and that Petitioner's alleged wife called him to try to get to agree to the less expensive repairs. VO provided the phone numbers of both Petitioner and his alleged wife. On April 11, 2012, S1 contacted the Agency's Office of the Inspector General (OIG) to initiate an investigation regarding the March 10, 2012, accident.
On May 9, 2012, a local news station aired a story under the "7 On Your Side" segment. VO appeared on television and stated that Petitioner had told him the only way he could get his car fixed was by using the parts Petitioner ordered and have the work done "on the down low." VO also stated that Petitioner tried to "intimidate" and "bully" him. A taped conversation with Petitioner's alleged wife and footage showing the Williamsbridge Station was broadcast as part of the story.
On May 30, 2012, TE spoke with the OIG Special Agents and stated that when Petitioner asked her to drive a postal vehicle, she showed him her identification, which is stamped "TE CARRIER NON-DRIVING." TE stated that Petitioner would then tell her that he "is the boss" and that she needed to follow his instructions. TE also provided a recording of a conversation she had with Petitioner a few days after the accident where Petitioner can be heard discussing getting parts for VO's vehicle.
The OIG Special Agents interviewed Petitioner on July 13, 2012. Petitioner initially told the agents that he was off on March 10, 2012. Petitioner also told them that he did now know that TE was a non-driving carrier. He stated that he did not file an accident report because he is a station manager and it is the responsibility of a supervisor to file accident reports. Petitioner claimed that he asked SCS to complete an accident report but that she could not because she planned to be out of town for a while. When asked about his alleged wife calling VO, Petitioner stated that she was not his wife but a personal friend doing him a favor. Petitioner also claimed that other Agency employees have taken care of accidents without reporting them but when asked to provide their names, Petitioner declined.
S1 mailed Petitioner letters on three separate dates, August 3, 2012, August 10, 2012 and August 17, 2012, instructing Petitioner to report for an investigative interview regarding the March 10, 2012, incident.3 In the letter, S1 informed Petition to call if he could not make the scheduled meetings. Petitioner did not call S1 and missed all of the scheduled meetings.
On December 21, 2012, S1 issued Petitioner a proposed removal for Conduct Unbecoming a Postal Officer based on his failure to follow these Agency regulations: (1) only allowing authorized personnel to operate Agency vehicles; (2) investigating and reporting accidents; (3) conducting himself in a manner that reflects favorably upon the Agency and; (4) cooperating in any Agency investigation, including OIG investigations. Petitioner did not submit a reply and on February 6, 2013, the deciding official (DO) issued the Letter of Decision upholding the removal, effective February 15, 2013. In deciding to remove Petitioner, DO found that Petitioner's actions were egregious in many ways, repeated and involved a private citizen, as well as subordinates. DO further noted that Petitioner repeatedly failed to follow Agency policy; gave misinformation to Agency management officials; directed a subordinate not to follow Agency policy; attempted to resolve the situation by himself, with the help of a non-Agency friend and; caused a private citizen frustration, which led to him to seek help from the media, which brought negative attention upon the Agency. DO determined that he could no longer trust Petitioner to act professionally, with integrity, and abide by Agency rules and regulations.
On September 30, 2014, Petitioner timely appealed his removal with the MSPB.4 A hearing was held on January 22 and March 3, 2015. Thereafter an MSPB Administrative Judge (AJ) issued an initial decision on April 27, 2015, affirming Petitioner's removal. The AJ found that the Agency proved by preponderant evidence the charge of conduct unbecoming a postal official; that the Agency established that the removal promotes the efficiency of the service; that Petitioner had not proven his affirmative defense of harmful procedural error and; Petitioner had not proven his affirmative defense that he was discriminated against based on reprisal for prior EEO activity.
In regards to Petitioner's reprisal claim, the AJ noted that Petitioner filed an EEO claim approximately one month prior to S1's issuance of the proposed removal. S1 testified that he was aware of Petitioner's EEO case but that it had no bearing on his decision to issue the proposed removal.5 The AJ found S1 to be credible and that the underlying facts supported the proposed removal. The AJ further noted that the investigation into Petitioner's misconduct started in April 2012, months before Petitioner engaged in protected EEO activity. Additionally, the AJ found that DO was unaware of Petitioner's EEO activity at the time he signed the decision letter in February 2013. Accordingly, the AJ held that Petitioner had not shown that there was a genuine nexus between the alleged retaliation for prior EEO activity and his removal.
Petitioner filed a petition for review before the full MSPB Board and on October 20, 2015, the MSPB issued the Final Order denying the petition for review and affirming the initial decision. The MSPB noted that Petitioner did not challenge the AJ's finding that Petitioner had not proven his affirmative defense of reprisal discrimination and the MSPB saw no reason to disturb that finding.
Petitioner then filed the instant petition. He did not provide any arguments in support of his petition.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Petitioner to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
Petitioner can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Petitioner may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In Petitioner's case, assuming, arguendo, that he established a prima facie case of reprisal discrimination, we agree with the MSPB that the Agency articulated a legitimate non-discriminatory reason for his removal. The Agency removed Petitioner for his actions surrounding the March 10, 2012, vehicle accident. The record shows that Petitioner instructed a non-driving employee to drive and after following his instructions, she got into an accident. After the accident, Petitioner did not properly follow Agency regulations in filing an accident report and specifically instructed another employee to not file an accident report. Petitioner then involved a friend in an attempt to convince VO to have his car repaired without Agency involvement. Petitioner's actions led VO to contact the local news, which aired a story that showcased the Agency is a negative light. Petitioner then provided untruthful statements during his interview with the OIG Special Agents who were investigating this matter.
Additionally, we agree with the MSPB that Petitioner has not shown any evidence that he was removed based on reprisal for prior EEO activity. At most, Petitioner provided a statement from a former coworker (C1) dated January 2, 2015, where she wrote that she saw S1 giving another employee a "high-five" and stated "[w]e finally got him, we finally got [Petitioner]," while smiling and laughing. However, we note that this statement was unsigned and that C1 did not provide testimony. Assuming for purposes of this decision that C1's statement was an accurate account of S1's conduct, we are not persuaded that Petitioner's prior EEO activity was implicated. S1's conduct could just have easily been based on his happiness over this matter being resolved after a long period of time. Accordingly, we find that Petitioner did not provide evidence to show that the Agency's reasons for his removal were pretext for discrimination.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to remove him was based on reprisal for prior EEO activity.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/8/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The record shows that the accident report was filed on March 23, 2012, by another manager at the Williamsbridge Station.
3 The record shows that during this time period, Petitioner had not been reporting to work due to a workplace injury.
4 Petitioner initially filed his appeal before the MSPB on February 25, 2013, but that appeal was dismissed without prejudice because Petitioner's representative withdrew his representation and Petitioner requested additional time to obtain new representation.
5 While the MSPB AJ noted that Petitioner's EEO activity occurred in November 2012, the record shows that S1 was interviewed on April 26, 2012, for one of Petitioner's EEO complaints that S1 allegedly harassed Petitioner.
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