0120162285
10-21-2016
Kelvin J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kelvin J.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120162285
Hearing No. 480-2013-00594X
Agency No. 4F-913-0030-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 9, 2016 final action 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.
BACKGROUND
During the period at issue, Complainant worked as a City Letter Carrier at the Agency's Northridge, California Post Office.
On April 5, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of age (over 40) and in reprisal for prior EEO activity when:
1. on November 27, 2012, the Postmaster made negative comments on his PS Form 4584 Driver Observation;
2. on November 29, 2012, December 21, 2012, and January 3, 2013, management subjected him to investigative interviews;
3. on January 4, 2013, the Supervisor of Customer Services issued him a Letter of Warning; and
4. on May 2, 2013, the Postmaster issued him a Letter of Warning.2
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On May 23, 2016, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. With respect to claim 1, Complainant stated that on November 27, 2012, the Postmaster gave him a Driver Observation Form 4584 that stated that he had his vehicle door open while delivering mail. The AJ noted that according to the Postmaster, she acknowledged giving the form to Complainant because she observed Complainant driving around a parked car with the door of his vehicle open which the Postmaster considered to be an unsafe practice.
Further, the AJ noted that the Supervisor of Customer Services, also Complainant's direct supervisor (supervisor), was with the Postmaster while she was observing Complainant and the supervisor concurred Complainant's driving practice was unsafe.
Regarding claims 2 and 3, the AJ noted that on November 29, 2012, the supervisor conducted an investigative interview with Complainant regarding his driving with his vehicle door open on November 27, 2012. The AJ noted, however, the Postmaster withdrew Complainant's Driver Observation PS Form 4584 after the Sierra Coastal District Safety informed her that Complainant's actions were not a safety violation.
Further, the AJ noted that on December 21, 2012 and January 3, 2013, the supervisor conducted investigative interviews with Complainant in order to give him an opportunity to explain the amount of overtime he requested on various dates, as the mail volume on his route did not support his requests. On January 4, 2013, the supervisor issued Complainant a Letter of Warning for Failure to Follow Instructions/Poor Job Performance. Therein, the supervisor stated that during the December 21, 2012 and January 3, 2013 investigative interviews, Complainant's answers to the interview questions were unacceptable because it did not justify why he failed to follow instructions and to perform his duties in the time allotted.
Regarding claim 4, the Postmaster stated that on May 1, 2013, she issued Complainant a Letter of Warning for Failure to Follow Instructions/Poor Job Performance. Specifically, the Postmaster stated that during the April 24, 2013 investigative interview, Complainant was asked to explain his 3996 requests for April 18, 19 and 22, 2013. The Postmaster found Complainant's answers did not justify how he determined his additional time needed to complete his route. The Postmaster found that Complainant claimed each day was different. But during the fluctuation in mail volume for three days, he requested the same amount of time. The Postmaster determined that with less mail, Complainant should be requesting less auxiliary assistance, which was not the case here.
The Postmaster stated that as a letter carrier with 27 years of experience, Complainant had been assigned to his route since August 2010. The Postmaster stated that Agency management has tracked his performance and that Complainant was not consistent in his requests for auxiliary assistance. Moreover, the Postmaster determined that Complainant was in violation of Sections 112.21 "Efficient Service" and 112.24 "Display a willing attitude and put forth a conscientious effort in developing skills to perform duties assigned" of the M-41 Carriers Handbook.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, Complainant, in essence, argues that the AJ erred in issuing summary judgment and requests a hearing on his complaint. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
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, she 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).
Here, the undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final action implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
October 21, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record reflects that claim 4 was later amended to the instant formal complaint.
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