Ramon L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120172433 (E.E.O.C. Oct. 23, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ramon L.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120172433

Agency No. 4F900037716

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the December 6, 2016, final
agency decision (FAD) 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

At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier,
Q-01 at the Agency’s Sunset Post Office facility in Los Angeles, California.

On July 8, 2016, the Agency issued a letter to Complainant indicating that the Agency had
placed Complainant on an off-duty status without pay, effective July 2, 2016, because, on July 1,
2016, he had been in an automobile accident which he failed to report to the Agency’s
management and the Agency determined that retaining Complainant on duty may result in injury
to others.

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.
0120172433

2
On July 15, 2016, the Agency conducted an investigative interview. The report of that
investigation indicates that, when questioned about the accident, Complainant initially denied the
occurrence of any accident, then, when shown pictures relating to the accident, acknowledged
hitting a rock pillar, but indicated he did not report the incident because he did not think it was an
accident.

On August 4, 2016, the Agency issued a Notice of Removal (NOR) to Complainant indicating he
would be removed from his position at the Agency no sooner than thirty (30) calendar days from
the date of Complainant’s receipt of the NOR. The reason for his removal was unsatisfactory
safety performance/failure to operate his assigned postal vehicle in a safe manner, as relating to
the July 1, 2016 accident.

On September 9, 2016, the Agency issued a letter indicating that, on September 2, 2016,
Complainant was placed on off-duty status without pay, as an emergency placement, relating to
observations of his work-related driving on that same day. The letter indicates it appears he
failed to perform his duties in a safe manner and retaining him on duty may result in injury to
himself and/or others.

On December 6, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Black) and age when, (1) on July 2, 2016, he was
placed on off duty status; (2) on August 8, 2016, he received the NOR; and (3) on September 2,
2016, he was placed on off-duty status.

The EEO counselor’s report indicates that Complainant was asked to provide an affidavit in
support of his claim, but he failed to do so. Tracking information indicates the request was
received. We note that Complainant submitted an affidavit on March 31, 2017, after the
investigation had been closed.

On January 5, 2017, the Agency dismissed Complainant’s claim of discrimination relating to his
being placed on off-duty status on July 2, 2016 as untimely, pursuant to 29 C.F.R.
§ 1614.105(a)(1). In so doing, the Agency found Complainant initially requested pre-complaint
counseling from an EEO counselor on August 29, 2016, which was 58 days after the occurrence
of the alleged discrimination on July 2, 2016. Thus, the Complainant filed his complaint
regarding this alleged discriminatory event after the 45-day time limit.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b). The FAD incorporated the January 5, 2016 dismissal of Complainant’s claim
relating to his being placed on off-duty status on July 2, 2016, including its rationale. The FAD
concluded that, with respect to the remaining claims, Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

0120172433

3
In the FAD, the Agency determined Complainant failed to establish a prima facie case of
disparate treatment because he failed to show that a similarly situated individual not in his
protected group of race or age were not similarly treated under similar circumstances. With
respect to the NOR, Complainant testified that he was not aware of any other employees under
the same supervision who had similar deficiencies but were not issued corrective action, within
the past year; two managers in Complainant’s chain of command (MGR1 and MGR2) asserted
the same. Complainant indicated there were three (3) employees under the same supervision with
similar deficiencies who were issued corrective action, within the last year; MGR1 identified one
black man in his late 50’s who was under the same supervision and issued a NOR for a safety
infraction when he was involved in a motor vehicle accident, which he reported but reported
inaccurately; the incident also resulted in an emergency placement. MGR2 indicated he was not
aware of any other employees under the same supervision who had similar deficiencies and were
or were not issued corrective action, within the past year.

With respect to the emergency placement, Complainant identified three (3) employees under the
same supervision who were put on emergency placement for similar infractions, but he did not
know the reason they were placed on suspension. He indicated one black man, over age 40, was
not placed on emergency suspension by MGR1, although he double parked, did not curb his
wheels, and exited the vehicle while it was running. MGR1 testified that the employee noted
above, the black man in his late 50’s, was the only employee under the same supervision who
was put on emergency placement for similar infractions.

The Agency also determined that management had articulated legitimate, nondiscriminatory
reasons for its actions. It noted that because Complainant failed to furnish information upon the
EEO counselor’s request, any deficiency in the record preventing him from meeting his burden
of proof is not attributable to the Agency’s failure to conduct a proper investigation. With respect
to the issuance of the NOR, on July 1, 2016, Complainant was observed by a homeowner
backing his vehicle into a rock pillar located near the homeowner’s mail receptacle, causing it to
break and fall, resulting in property damage. Complainant did not report the incident, although
he had been instructed as to how to perform his duties safely and that he should report any
accidents or injury to his supervisors. Complainant initially denied there had been any accident,
but upon being presented with pictures, indicated he did not believe the incident was an accident.
Complainant filed a grievance relating to the NOR, which resulted in the Agency’s management
and the union (NALC) agreeing to reduce the NOR to a fourteen-day (14-day) suspension for
one (1) year from August 8, 2016, with the settlement covering all infractions up to November 8,
2016, and Complainant was made whole for lost wages and benefits.

With respect to the emergency placement on off-duty status without pay on September 2, 2016,
the Agency’s management reported observing Complainant while driving his route on that day.
Complainant was observed driving uphill, stopping his vehicle and backing up unnecessarily
towards the previous address; he stopped again, drove forward and then parked the vehicle,
making a dismount delivery, leaving the vehicle running and the wheels not curbed.
0120172433

4
Complainant failed to perform his duties in a safe manner and retaining Complainant on duty
could result in damage to the Agency’s property, loss of mail or funds, or injury to Complainant
and/or others. The Agency noted that the grievance settlement covered all infractions up to
November 8, 2016.

Complainant attempted to establish that the Agency’s reasons for its actions were pretextual.
With respect to the NOR, he testified that he did not believe there was anything to report and the
homeowner’s claim was false; he did not think there was any property damage to report. With
respect to both claims, he testified that race was a factor because he had spoken to several other
older black co-workers who had disciplinary action taken against them and they said MGR1 talks
to them in a demeaning way. He asserted that age was a factor because he had been at the
Agency’s facility for two (2) years and MGR1 had gotten rid of or made six (6) different staff
members leave. He also asserted MGR1 asked him when he planned to retire. With respect to the
emergency placement, Complainant disputed management’s assertions regarding his driving and
testified that MGR1 did not put an older black person in his office on emergency placement for
the same alleged behavior. The Agency found that Complainant presented insufficient evidence
of pretext with respect to either claim.

The instant appeal followed. Complainant did not submit additional statement or brief in support
of his appeal.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Untimely EEO Counselor Contact

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.

0120172433

5
With respect to Complainant’s alleged claim of discrimination when he was placed on off-duty
status without pay on July 2, 2018, the record discloses that he initially requested pre-complaint
counseling from an EEO counselor on August 29, 2016. This is more than 45 days after the
occurrence of the alleged discrimination effective July 2, 2016. The Commission has consistently
held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of
laches may apply. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45028 (November 18,
2004) (finding that the doctrine of laches applied when complainant waited over two years from
the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v.
Dep’t of Health and Human Servs., EEOC Request No. 05901130 (December 27, 1990). The
doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently
his course of action could bar his claim. Complainant has not offered a sufficient justification for
extending or tolling the time limit.

Disparate Treatment

Complainant alleged that the Agency treated him disparately in two separate instances.
Generally, such claims of disparate treatment are examined under the three-part analysis
established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

For a complainant 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 Construction Corp. v. Waters, 438 U.S. 567 (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.

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant 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, the complainant 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. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Cr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716(1983).

Here, if we assume Complainant has established a prima facie case with respect to his claims, his
claims nevertheless fail, as the record establishes the Agency had legitimate and
nondiscriminatory reasons for its actions in both instances. With respect to the NOR, the Agency
sufficiently documented Complainant’s accident which involved his backing his vehicle into a
rock pillar at a home and causing property damage. Complainant does not deny that he did not
report the incident. He asserts that he did not believe the incident was an accident. This is not
persuasive. This accident, Complainant’s failure to report it, and his inconsistent responses when
questioned during the investigation are sufficient to warrant discipline, such as the NOR.
0120172433

6

With respect to the emergency placement on suspension, the Agency management reported
observations of Complainant’s unsafe operation of his vehicle. While Complainant denies
management’s report of his unsafe driving, Complainant’s inconsistent statements of record
undermine his assertions in general. Thus, we find the record sufficient to warrant discipline,
such as the emergency suspension. Therefore, we find that Complainant has not shown the
Agency’s proffered reasons to be pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed in this decision, we AFFIRM the Agency’s finding that Complainant has
failed to establish by a preponderance of the evidence that he was subject to discrimination on
the basis of race or age.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
0120172433 7
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 23, 2018
Date