0120160245
03-30-2016
Myron S.,1 Complainant, 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
Myron S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160245
Agency No. 1G-321-0007-15
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 1, 2015 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Jacksonville Processing and Distribution Center facility in Jacksonville, Florida.
On March 27, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of sex (male), age (over 40), and in reprisal for prior EEO activity when, on December 12, 2014, he was placed off work without pay on an emergency placement.
After the investigation was completed, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On September, 2015, the Agency issued the instant final decision, finding no discrimination. The Agency concluded that the responsible Agency articulated legitimate, nondiscriminatory reasons for the emergency placement which Complainant failed to show were a pretext for discrimination.
The instant appeal followed. On appeal, Complainant argues that the Agency erred finding no discrimination. Complainant states that "the discrimination was already pretext: instead of [Manager] bring this issue to the Complainant's immediate supervisor's attention he chose to instigate, dictate, provoke and harass the complainant. The Complainant was not a threat to [Manager]; in fact it was [Manager] that blew this issue out of control by bullying the Complainant and over exceeding his authority."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part 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).
As an initial matter, we note that the report of investigation contains no affidavit from Complainant. On appeal, Complainant argues that the investigator failed to acknowledge his affidavit. Complainant states that due to a hospitalization, he requested an extension from the EEO Services Analyst (Analyst). Complainant states that after the Analyst granted him a 180-day extension, and he "provided a timely Affidavit that the Investigator failed to acknowledge."
The record contains a copy of the investigator's letter dated October 12, 2015 to the Analyst. Therein, the investigator informed the Analyst that she recently received a copy of Complainant's affidavit dated October 12, 2015. The investigator stated "my investigation of this case was finalized on June 19, 2015, at which time the Complainant had not provided his affidavit." We note that there is no evidence in the record indicating Complainant was granted an extension to submit his affidavit. Moreover, Complainant did not include a copy of the 180-Day extension which was purportedly approved by the Analyst with his appeal. Accordingly, we conclude that the investigator in this case did not err by closing the investigation without receiving an affidavit from Complainant.
Complainant alleged, during EEO counseling and in his formal complaint, as well as in his statement on appeal, that on December 12, 2014, the Senior Plant Manager (Manager) approached him on the workroom floor and asked if he was hindering another employee from working. Complainant said that he nodded "no" and continued walking. He asserts the Manager told him to come back and speak to him when he was asked a question. Later, Complainant was instructed to meet with the Manager to discuss the encounter.
Complainant was accompanied to the meeting with his union representative. Complainant claimed that the Manager became agitated with him because he would not speak to the Manager directly and instead would only speak with the union representative. Complainant further alleged that at one point during the meeting, the Manager told him to lower his voice, and Complainant responded that his voice was his "weapon of choice." Furthermore, Complainant alleged that the Manager sent him home because he was being singled out due to a past history of confrontations with him. The record shows that Complainant was instructed to return to work on January 8, 2015, in a certified letter dated January 3, 2015.
The Manager stated that he placed Complainant on an unpaid emergency leave because of improper conduct. Specifically, the Manager stated that Complainant's statement "my voice is my weapon of choice" and his refusal to discuss matters at the meeting was unprofessional, improper and considered to be threatening behavior which was the reason he put Complainant on Emergency Placement. The Manager went to detail how Complainant's behavior violated specific conduct standards detailed in the Agency's Employee and Labor Relations Manual.
Complainant has failed to prove, by a preponderance of the evidence, that the proffered reasons for the actions taken were a pretext for unlawful discrimination. Complainant and the Manager essentially have the same account of the events of December 12, 2014. It is undisputed that the unpleasant encounter between Complainant and the Manager resulted in the action in question. While Complainant, in his statement on appeal, states that he was treated differently than other employees, he has provided no details of that allegation or evidence to support it. Complainant also argues that instead of confronting him directly for talking with another employee on the workroom floor, past practice has been to refer such matters to the employee's first level supervisor to deal with. However, these arguments, without more, do not prove the discriminatory animus was at play in this matter.
Therefore, 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 because the preponderance of the evidence of record does not establish that discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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
March 30, 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 On appeal, Complainant does not challenge the April 6, 2015 partial dismissal issued by the Agency regarding two other claims (that he was discriminated against on the bases of sex, age, and in reprisal for prior EEO activity when on January 7, 2015, he received a letter stating he was to return to work or be charged absent from duty; and starting on a date to be specified, he has not been permitted to work his bid assignment). Therefore, we have not addressed these issues in our decision.
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