Marvin D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 13, 20160120142962 (E.E.O.C. Dec. 13, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marvin D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120142962 Hearing Nos. 550-2012-00252X; 550-2012-00287X; 550-2012-00288X Agency Nos. 1F-951-0032-09; 1F-951-0016-11; 1F-951-0003-12 DECISION The Commission accepts Complainant’s appeal from the Agency’s August 17, 2014 final order concerning his equal employment opportunity (EEO) complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final order. 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. 0120142962 2 BACKGROUND Agency No. 1F-951-0032-09 At the time of events giving rise to these complaints, Complainant worked as a Motor Vehicle Operator at the Agency’s Processing and Distribution Center in San Jose, California. On February 26, 2009, Complainant was involved in an accident while moving a trailer. The accident caused damage to the frame and undercarriage of the vehicle. Complainant did not report the accident immediately as required by Agency policy, and Complainant’s supervisor (S1) only became aware of the accident after an employee who witnessed the accident reported it to her. On March 9, 2009, S1 suspended Complainant’s driving privileges pending an investigation into the accident. Complainant attended two investigative interviews regarding the incident. Following an investigation into the accident, S2 concluded that Complainant’s responses were in conflict with the evidence gathered. As a result, on April 3, 2009, S2 issued Complainant a Notice of Removal for Failure to Work in a Safe Manner/Unsafe Act/Failure to Report an Accident Timely. The removal notice was later reduced to a Letter of Warning. On March 31, 2009, Complainant’s supervisor (S2) offered Complainant a limited duty assignment and informed him that his driving privileges had been restored. Additionally, S2 instructed Complainant to take a van and deliver Express Mail pieces to the Santa Cruz Post Office. Complainant refused to accept the assignment and demanded that management provide him a separate written authorization restoring his driving privileges. S2 and the Transportation Operations Manager (M1) assured Complainant that he could drive. Complainant became irate, started yelling, and threw papers. Complainant’s behavior grew more disruptive and aggressive, and M1 instructed him to clock out and go home. Additionally, S2 contacted the Inspection Service to report Complainant’s behavior. An inspector visited Complainant at his home to interview him. The inspector advised Complainant not to return to work based upon his demeanor in answering the questions and the Agency’s “no tolerance” policy regarding threatening and erratic behavior. On April 6, 2009, S2 left a message on Complainant’s answering machine instructing him to report back to work on April 7, 2009. Complainant called the automated system and requested sick leave for April 7, 2009. Additionally, Complainant failed to report to work as scheduled and failed to notify management that he would be absent. As a result, Complainant was charged with absence without leave (AWOL). Management conducted an investigative interview with Complainant regarding the March 2009 incident and his absences. S2 determined that Complainant failed to provide adequate justification for his actions. As a result, S2 issued Complainant a Notice of Removal on May 8, 2009, for Failure to Follow Instructions/Unacceptable Conduct. The removal notice was later reduced to a Seven-Day Suspension. 0120142962 3 On July 31, 2009, Complainant filed a formal complaint (Agency No. 1F-951-0032-09) alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability, and in reprisal for prior protected EEO activity when: 1. He was issued a Letter of Warning on February 26, 2009 (reduced from a Notice of Removal), for failure to work in a safe manner/unsafe act/failure to properly report accident/falsifying documents; 2. He was issued Seven-Day Suspension on May 8, 2009 (reduced from a Notice of Removal), for failure to follow instruction/unacceptable conduct: and 3. He was, otherwise, subjected to several harassing incidents including: his job injury claim was improperly processed; he was not permitted to drive; he was required to verify jury duty on a daily basis; his airport badge was cancelled; he was charged with being absent without leave (AWOL); he was observed on his route; he was scheduled fewer hours than other Part-Time Flexible employees; and he was placed on Tour 1 to answer telephone inquiries. Agency No. 1F-951-0016-11 On March 14, 2011, Complainant was scheduled to report to work at 3:15 a.m. Complainant failed to report and failed to notify management that he would not be reporting to work. Complainant had been on scheduled annual leave from March 7, 2011 through March 13, 2011. Complainant explained that there was a mix-up on the day that he requested on his leave form. As a result of not reporting as scheduled, Complainant was charged with AWOL. Based on Complainant’s past disciplinary record, S1 issued Complainant a Seven-Day Suspension for Failure to Report as Scheduled/AWOL. On April 13, 2011, S2 placed Complainant on restricted sick leave due to his accumulation of multiple unscheduled absences. S2 later learned that Complainant’s leave was Family Medical Leave Act (FMLA)-protected and removed the restriction. On June 21, 2011, Complainant was involved in an accident while driving a postal vehicle. Complainant failed to report the accident and, instead, another employee reported damage to the vehicle. S2 began investigating and determined that Complainant had scraped a customer’s retaining wall with the vehicle. On June 28, 2011, S2 held an investigative interview with Complainant who denied involvement in an accident. S2 determined that Complainant’s responses during the interview were inconsistent with the evidence gathered during the investigation. As a result, S2 issued Complainant a Notice of Removal for Failure to Follow Instructions/Unsafe Act/Failure to Report an Accident. The removal action was later reduced to a 14-Day Suspension. On June 7, 2011, Complainant filed a second formal complaint (Agency No. 1F-951-0016-11) alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when: 0120142962 4 4. On April 13, 2011, he was issued a Seven-Day Suspension; 5. On April 3, 2011, he was placed on a restricted sick leave; and 6. On July 14, 2011, he was issued a Notice of Proposed Removal (reduced to a suspension). Agency No. 1F-951-0003-12 On October 18, 2011, Complainant failed to properly secure a load on his vehicle in violation of Agency safety regulations which resulted in damage to Agency property. Complainant admitted to failing to secure the load. Complainant had accumulated such a chronic and flagrant record of safety-related violations that management concluded that he posed a systemic hazard and safety risk which warranted placing him in an emergency off-duty status. Management ultimately decided that removal was the more appropriate disciplinary action to take and replaced the emergency placement with a Notice of Removal on November 17, 2011. The Notice of Removal cited numerous additional safety and conduct infractions including an incident where Complainant was observed screaming at and assaulting a customer, a tailgating incident, and another instance where Complainant failed to secure the load in his vehicle resulting in damage to Agency property. Based upon his disciplinary history and poor safety record, S2 issued Complainant a Notice of Removal effective December 23, 2011. On January 27, 2012, Complainant filed a third formal complaint (Agency No. 1F-951-0003- 12) alleging that the Agency discriminated against him on the bases of race (African- American), disability, age (51), and in reprisal for prior protected EEO activity when: 7. On October 19, 2011, he was placed into an Emergency Placement Off-Duty Status; 8. On November 17, 2011, he was issued a Notice of Removal effective December 23, 2011; and 9. He was not provided a reasonable accommodation. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation (ROI-1, ROI-2, and ROI-3 respectively) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings. The AJ assigned to the cases consolidated the complaints, granted summary judgment in favor of the Agency, and issued a decision without a hearing on July 30, 2014. In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. In particular, with regard to his claims in Agency No. 1F-951-0032-09, Complainant was involved in an accident with his vehicle in February 2009, did not report it properly as required and then tried to cover it up with subterfuge warranting the removal (mitigated to suspension) at issue. In March 2009, Complainant refused to accept a job assignment which restored his driving privileges, insisted that the Agency restore his driving privileges in a certain way, and was sent home because he threw some papers and acted so irrationally and erratically that the Agency’s Inspection Service had 0120142962 5 to be called in to intervene. The reasons for these disciplinary actions were investigated, documented and corroborated by witnesses; the evidence was not refuted, and there is no evidence to the contrary. With regard to Complainant’s harassment claim, the AJ determined that the alleged incidents were insufficiently severe or pervasive. Furthermore, the AJ found that there was no evidence that the alleged incidents were based on Complainant’s protected classes. For example, Complainant believed that the Agency improperly handled his work-related injury and workers’ compensation matters in 2007 and 2008. Complainant claimed that he was entitled to four compensable hours for doctor’s appointments, but only received two. The Health and Resource Manager (HRM) informed Complainant and all other employees who suffered on- the-job injuries that injured employees would be issued two compensable hours for such appointments, but if more time was needed, the employee would need to justify the need and submit a request to the Office of Workers’ Compensation Programs for additional compensation. Additionally, HRM requested additional medical documentation based on Complainant’s work assignment demands, frequent changes in medical restrictions, and frequent absences for “medical” reasons. The AJ further determined that the undisputed evidence showed Complainant’s workers’ compensation paperwork was late, incomplete, or incorrectly completed and that these oversights by Complainant caused delays in processing his workers’ compensation benefit claims. Complainant’s driving privileges were revoked pending an investigation into the February 2009 accident. Further, Complainant was required to document daily his jury service duty pursuant to Agency policy just as all other employees were. Complainant’s airport clearance badge was revoked because he did not need access to the airport and all Part-Time Flexible employees who did not need access had their badges deactivated. Finally, Complainant was moved from Tour 2 to Tour 1 because it was determined that Complainant’s work area was unsafe due to the level of Agency-related business, traffic, and activity being conducted. Complainant was placed back on Tour 2 and given administrative duties in accordance with his medical restrictions. The documentary evidence reflected that, during the relevant time period, Complainant worked about the same number of hours and received about the same pay as other similarly situated Part Time Flexible vehicle operators. With respect to the claims alleged in Agency No. 1F-951-0016-11, Complainant was issued a removal notice (reduced to a 14-day suspension) in July 2011 because he failed to follow instructions, committed an unsafe act, and caused a “hit-and-run” accident. Management’s investigation determined that Complainant caused the accident, that he attempted to shift the blame, and argued falsely that the damage to Agency property had not been so serious as to warrant his removal. The AJ noted that it was undisputed that Complainant did not report the accident or show his supervisor the vehicle damage as required by Agency policy. Additionally, Complainant was mistakenly issued a sick leave restriction which S1 immediately rescinded upon learning of her mistake. 0120142962 6 Regarding the claims alleged in Agency No. 1F-951-0003-12, Complainant was placed on Off- Duty status because, upon investigation, management determined that he failed to secure a load on his vehicle in violation of Agency safety regulations causing damage to Agency property. Complainant conceded the violation. Complainant was initially placed on Emergency off-duty status because he had compiled such a flagrant record of safety-related violations and ongoing misconduct and he posed a systemic hazard and safety risk. However, the “off-duty” decision was replaced with a Removal Notice because, in considering Complainant’s egregious safety record and the fact that he posed a risk and hazard, the Agency concluded that removal was the appropriate action. Finally, as to his denial of reasonable accommodation claim, the AJ found that there was no evidence that Complainant was denied one or that he was ever compelled to work beyond his medically-prescribed restrictions when such restrictions were at times imposed. Accordingly, the AJ found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the Agency. Complainant claims that the AJ committed numerous errors including denying his pre-hearing motions and failing to examine all evidence. Complainant argues that while he made mistakes, he was disciplined more harshly than others and was set up to fail. Complainant contends that the Agency made many mistakes and misjudgments about him which are probative of whether their reasons are pretext for discrimination. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. At the outset, the Commission will address Complainant’s arguments on appeal related to the AJ’s handling of his complaint. Complainant contends that the AJ committed several errors related to his motions and other evidentiary matters. The Commission notes that AJs have broad discretion in the conduct of hearings and related proceedings. See 29 C.F.R. § 1614.109; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7. Upon review of the record, the Commission finds no evidence that the AJ abused his discretion in the manner in which he managed and adjudicated this case. 0120142962 7 The Commission also finds that the AJ properly issued summary judgment as the material facts are undisputed. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Agency No. 1F-951-0032-09 Complainant was issued the Notice of Removal (later reduced to a Letter of Warning) because he failed to work safely and was involved in an accident, tried to hide the accident, and falsified documents. ROI-1, at 179. Complainant’s driving privileges were revoked pending an investigation into the accident. Id. at 177. On March 31, 2009, Complainant became irate and exhibited hostile behavior after management attempted to give him an assignment and reinstate his driving privileges necessitating management summoning the Inspection Service. Id. at 164, 177. Complainant was sent home, but instructed to return to work on April 7, 2009. Id. at 177. Complainant called in sick on April 7, 2009, but failed to report to work as scheduled or notify management of his absence on April 8, 2009. Id. at 177-78. As a result, Complainant was charged with AWOL. Id. at 178. Complainant’s airport clearance badge was revoked because he had no need for airport access at the time. Id. at 180. Complainant was issued the Notice of Removal (later reduced to a Seven-Day Suspension) for Failure to Follow Instructions/Unacceptable Conduct for his conduct on March 31, 2009, and his AWOL charge on April 8, 2009. Id. at 111. Agency No. 1F-951-0016-11 S1 stated that she issued Complainant the Seven-Day Suspension based on Complainant’s failure to report to work on March 14, 2011, as scheduled. ROI-2, at 147. S1 noted that Complainant’s disciplinary history factored into the discipline issued. Id. With regard to the 0120142962 8 sick leave restriction, S1 affirmed that she intended to place Complainant on the restriction; however, after verifying Complainant’s FMLA status she stopped the action. Id. at 149. S2 confirmed that she issued the June 2011 Notice of Removal (later reduced to a 14-Day Suspension) after Complainant was involved in and failed to report a hit and run accident which resulted in damage to public and Agency property. Id. at 200. Agency No. 1F-951-0003-12 M1 stated that Complainant was placed in an Emergency Off-Duty Status after he failed to properly secure his load, which resulted in damage to Agency property. ROI-3, at 190. M1 stressed that management believed that Complainant was a safety hazard after he continuously committed unsafe acts even after there were several disciplinary actions against him. Id. Complainant had been involved in several at-fault accidents, failed to report at least two accidents which he tried to blame on other drivers, and failed to improve his performance. Id. at 194. As a result, management issued the Notice of Removal on November 17, 2011, for Failure to Observe Safety Rules and Regulations. Id. at 208. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Construing the evidence in the light most favorable to Complainant, the Commission finds no evidence that Complainant’s protected classes were a factor in any of the Agency’s actions. Complainant's subjective belief that the management actions at issue were the result of discrimination or reprisal is insufficient to prove pretext. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Finally, to the extent that Complainant claims that the Agency failed to reasonably accommodate him, the Commission notes that under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would 0120142962 9 cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). The Commission will assume without deciding that Complainant is a qualified individual with a disability. Complainant claims that he made multiple requests for accommodations, but management mostly ignored them. ROI-3, at 133. The record shows that Complainant was on limited duty and given modified job assignments in accordance with his restrictions at various times in 2007 through 2009. ROI-1, at 161-62. Complainant presented no evidence that he was ever required to work outside of his restrictions or that the granted accommodations were ineffective. In August 2011, Complainant’s medical provider released him to return to work with no restrictions. ROI-3, at 305. As a result, the Commission finds that Complainant failed to show that he was denied reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 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 0120142962 10 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 December 13, 2016 Date Copy with citationCopy as parenthetical citation