0320160007
03-01-2016
Kyle S.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kyle S.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Petition No. 0320160007
MSPB No. DA0752120270I1
DECISION
On October 31, 2013, 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.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly determined that the Agency did not discriminate against Petitioner based on race and color when it removed him.
BACKGROUND
Petitioner worked as a Building Equipment Mechanic at the Irving Post Office in Irving, Texas. Petitioner alleged that the Agency discriminated against him on the bases of race (Caucasian) and color (White) when the Agency removed him on January 17, 2011. On June 19, 2010, Petitioner left an Agency vehicle unattended with the doors open, unlocked and with the keys in the ignition. When a visiting Manager of Post Office Operations (MPOO) saw the unattended vehicle, she took the keys and turned them over to the nearest supervisor.
On June 28, 2010, one of Petitioner's supervisors (S1) instructed him to check on a malfunctioning ice machine at another location and then report back to the Irving Post Office. Petitioner returned after six and half hours but did not explain why he was delayed in returning, when asked. S1 immediately placed Petitioner on an off-duty status, without pay, and instructed him to leave. When Petitioner returned the keys to an Agency vehicle, he did not mention the fact that the vehicle had run out of fuel and that he had left the vehicle in a residential neighborhood. During the routine vehicle inspection, another supervisor (S2) saw that the vehicle Petitioner used that day was not in the parking lot. He called Petitioner, who did not respond. The Postmaster (PM) declared the situation an emergency and instructed all available employees to search the city until the vehicle was found.
On September 21, 2010, S2 issued Petitioner a Notice of Proposed Removal for unacceptable performance based on these two incidents. S2 also took into consideration a previous suspension Petitioner served for using an Agency vehicle for personal use, while in a duty status.2 Petitioner did not submit an oral or written reply and on January 12, 2011, PM sustained the removal, effective January 17, 2011. PM noted that Petitioner's managers had lost trust in his ability to perform his duties in accordance with the Agency's rules and regulation and that he had no potential for rehabilitation.
On October 14, 2011, Petitioner filed a mixed case complaint and the Agency issued a decision on February 8, 2012. The Agency determined that Petitioner was not discriminated against on the bases of race and color. Petitioner named one comparator (C1), an African-American Maintenance Mechanic, who Petitioner alleges was not disciplined for abandoning an arrow key.3 However, the Agency found that C1 was not similarly situated because he held a different position. Additionally, the Agency found that Petitioner had not shown pretext for discrimination. PM and S2 denied taking Petitioner's race and color into consideration and stated that there were no other employees who were not disciplined for unacceptable performance.
Petitioner also grieved his removal under the Agency's negotiated grievance procedure and it was submitted to arbitration. A hearing was held on April 24, 2012, and on July 2, 2012, the Arbitrator rendered a decision finding just cause for the proposed removal and denying Petitioner's grievance.
On March 9, 2012, Petitioner filed an appeal of the Agency's decision to the MSPB. He filed a Pre-hearing Submission on June 10, 2012, requesting to include C1 and another witness (W1) to testify at the hearing. A telephonic prehearing conference was held on June 14, 2015, and the MSPB Administrative Judge (AJ) issued a Summary of Telephonic Prehearing Conference on June 15, 2015, which listed W1 as an approved witness but also included in a footnote that W1 was not approved as a witness. The summary did not address C1. On July 10, 2012, Petitioner submitted a Motion for Witness noting that W1 was listed as an approved witness and also the conflicting footnote stating that he was not approved. Petitioner again requested to include C1 as a witness because he was not included on the approved witness list but had been approved during the prehearing conference. The hearing was held on July 12, 2012, and at the start of the hearing, the AJ ruled that both W1 and C1 were not approved to appear as witnesses. In regards to C1, the AJ noted that Petitioner's Motion for Witness was untimely.
On November 2, 2012, the AJ issued an Initial Decision applying the doctrine of collateral estoppel to the issue of the removal because Petitioner had an opportunity to fully litigate the issue before the Arbitrator. The AJ also found that Petitioner had not proven his affirmative defense that the Agency discriminated against him based on race and color. While Petitioner claimed that C1 and MPOO were treated more favorably than he was, the AJ determined that they were not similarly situated comparators because they held different positions and did not engage in similar behavior. The AJ held that Petitioner had not established a prima facie case of discrimination based on race and color. Additionally, the AJ found that the record did not contain any facts to support Petitioner's claim that the real reason for Petitioner's removal was due to his race and color.
Thereafter, Petitioner filed a petition for review with the MSPB, which issued its Final Order on September 27, 2013. The MSPB denied the petition and affirmed the initial decision. The MSPB determined that the record supported the AJ's findings that the named comparators were not similarly situated because they held different positions and their conduct was not identical to Petitioner's. With regards to MPOO as a comparator, the MSPB found that she took action to mitigate the risk of theft created by Petitioner when he left the keys in the Agency vehicle.4 Additionally, the MSPB determined that Petitioner had not named any similarly situated comparators who abandoned a vehicle in a residential neighborhood when it ran out of gas and did not inform management, but were treated more favorably than Petitioner.
Petitioner then filed the instant petition where he alleges that the MSPB erred when the AJ did not disclose that she was a former employee of the Agency and that Agency's representative was her former immediate supervisor; the AJ did not allow two of his witnesses, C1 and W1, to testify; the AJ improperly applied the collateral estoppel doctrine; the AJ failed to consider the named comparators, C1 and MPOO; the AJ improperly determined that Petitioner had not established a prima facie case of discrimination and; the AJ did not make any credibility determinations regarding any of the witnesses. Petitioner also argues that he established a prima facie case; that the Agency's articulations are not true and; that management officials lied and the articulation by the Agency is pretext for discrimination.
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). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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).
Petitioner alleges that the AJ improperly failed to disclose that she was a former attorney for the Agency and that the Agency's representative was her former immediate supervisor. Petitioner argues that this information of potential bias should have been provided to him and that he should have had an opportunity to have the AJ recuse herself from his case. An AJ generally should recuse himself or herself from real and perceived conflicts of interest and should not participate in conduct that presents the appearance of or demonstrates actual bias in favor of one of the parties. See Equal Employment Opportunity Commission Handbook for Administrative Judges, Ch. 7, � III.A. (July 1, 2002). While Petitioner complains that the AJ should have disclosed this information so that he could request that she recuse herself, the Commission notes that there is no evidence in the record to support that the AJ committed material error during the MSPB hearing and was biased in favor of the agency.
Petitioner next alleges that the AJ erred in not allowing two of his witnesses to testify. Petitioner states that C1 would have testified to the seriousness of his own infraction and of management's knowledge of his actions. Petitioner argues that C1's testimony would show that Agency officials' testimony contained "material lies and misrepresentation." Petitioner states that W1 would have testified that Petitioner's action in securing the vehicle was done in accordance with past practice and that the vehicle on June 19, 2010, was secure at all times.
The Commission notes that AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ abused her discretion in these matters. The record shows that the AJ did not allow W1 to testify because his testimony would have been duplicative and similar to testimony offered by other approved witnesses. Another employee, who was with Petitioner on June 19, 2010, provided testimony at the hearing. As for C1's testimony, the record does not provide a specific reason for why he was not approved to testify. However, nothing in the record indicates that the AJ abused her discretion in not allowing C1's testimony. Accordingly, we agree with the MSPB that the AJ did not abuse her discretion in not approving C1 and W1 to testify at the hearing.
Petitioner provided a statement in which C1 states that he was not disciplined for the lost arrow key incident and that management's testimony was "not truthful." While the record shows that S1 testified that C1 was disciplined for this incident, S1 was not involved in Petitioner's removal. C1 stated that S2 was his supervisor and knew about this incident. However, the record shows that S2 testified that he could not recall the arrow key incident and that PM testified that he was not aware of C1's arrow key incident. Accordingly, even if C1 testified that he was not disciplined, his testimony does not show that S2 or PM were untruthful.
Petitioner alleges that the AJ erred because she did not make any credibility determinations regarding the witnesses. While the AJ did not specifically address her credibility determinations, Petitioner has not specified what error occurred. Notwithstanding, we can conclude that the AJ did make a credibility determination of the witnesses based on her finding of no discrimination. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VLB. (Aug. 5, 2015). Petitioner has not provided any evidence that would support disturbing the AJ's credibility determinations.
Petitioner also alleges that the AJ improperly truncated the hearing so that she could catch a flight. However, the record shows that it was not the AJ who needed to leave to catch a flight but that it was the Arbitrator who conducted the hearing for Petitioner's grievance.
Petitioner alleges that the MSPB erred in applying the collateral estoppel doctrine because the Arbitrator's decision concerned the proposed removal, not the actual removal. Petitioner argues that since the Commission does not consider a proposed adverse action and the actual adverse action as the same, the AJ failed to conduct a legal analysis in a manner that is consistent with Commission precedent. However, when a complaint is filed on a proposed action and the agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). Such a merger has now happened in this case - the proposal to remove no longer exists because it has merged with the actual removal action. Accordingly, the MSPB did not err when it applied the collateral estoppel doctrine.
Additionally, Petitioner argues that the AJ did not properly consider the named comparators because he states that they were in the same chain of command, had the same supervisors and were subject to the same rules, regulations and policies as Petitioner. While Petitioner argues that the named comparators were similarly situated, the record shows that the comparators' conduct differed from Petitioner's, which does not make them similarly situated. S1 testified that C1 "merely misplaced a key for a short period of time" and PM stated that the arrow key incident is not on the same level of offense as Petitioner's conduct. Additionally, in regards to MPOO, she held a different position and was visiting from another location, which indicates she had a different chain of command and different supervisors. Also, her conduct differed in that she was mitigating the situation by removing the keys that Petitioner left to prevent the unattended vehicle from being stolen. We agree with the MSPB that C1 and MPOO are not similarly situated comparators and that Petitioner has not established a prima face case.
However, even assuming, arguendo, that he had established a prima facie case of discrimination based on race and color, we agree with the MSPB that the Agency articulated a legitimate nondiscriminatory reason for his removal. Petitioner was removed for unacceptable conduct based on two incidents where he did not properly follow Agency policies and protocol with regards to its vehicles. The Agency also factored in a previous incident of misconduct and PM concluded that any trust in Petitioner had eroded.
While Petitioner alleges that the Agency's articulations are not true and are pretext for discrimination, he has not presented any evidence in support of his allegations. While Petitioner claims that C1's testimony that Agency officials were "not truthful" would show pretext for discrimination, as discussed above, even if we were to credit C1's testimony, it does not show that S1 and PM were untruthful. Additionally, the record shows that PM removed other Agency employees, who were outside of Petitioner's protected bases. PM testified that he considered the other employees' misconduct "not as severe" as Petitioner's misconduct, which shows that they were not treated more favorably than Petitioner. We agree with the MSPB that Petitioner has not shown that he was discriminated against based on his race and color.
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 Petitioner'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
___3/1/16_______________
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 Agency issued a Notice of Proposed Removal, which Petitioner grieved. The Arbitrator found that Petitioner engaged in the misconduct, as charged, but based on a procedural due process error, the removal was rescinded and reduced to a suspension.
3 An arrow key is a key that mail carriers use to open main doors, such as collection boxes.
4 Petitioner argues that MPOO testified that while she took the keys from the vehicle, she left the doors open and failed to make a diligent effort to secure the vehicle, but was not disciplined for her action.
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