0120111216
08-05-2013
Randall L. Roberts, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Randall L. Roberts,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120111216
Hearing No. 550-2008-00165X
Agency Nos. 1F-944-001707, IF-944-0013-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 18, 2010, final order 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. For the following reasons, the Commission AFFIRMS the Agency's final action which implemented the EEOC Administrative Judge's decision without a hearing finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Electronic Technician, PS-11, at the Agency's North Bay Processing & Distribution Center facility in Petaluma, California. On August 17, 2007, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when:
1. On September 5, 2007, he was sent home without pay; and
2. On September 13, 2007, he received a Letter of Warning for Unacceptable Conduct/Inappropriate Behavior in the workplace.1
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Upon review of the case, the AJ ordered both parties to brief whether a decision without a hearing was appropriate in this matter. Following the submission of briefs from both parties, the AJ found that the there were no genuine issues of material fact in this case. The AJ found that the primary conflict between Complainant and his supervisors was union-related activities. Complainant was a union steward that had filed multiple grievances against the Agency.2 The AJ determined that with regard to Complainant's dismissed claims the EEOC was not responsible for adjudicating complaints involving union activities. Therefore, the AJ found that the claims were properly dismissed for failure to fall within the purview of Title VII. The AJ also found that to the extent that Complainant was attempting to articulate a mixed-motive discrimination analysis, he failed to show that his supervisor's adverse employment actions were related to any discriminatory animus prohibited by Title VII.
With respect to the instant complaint, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was sent home without pay and subsequently sent a Letter of Warning for Unacceptable Conduct/Inappropriate Behavior because he failed to wear his badge after being told to do so; and after his supervisor reminded him to wear his badge, Complainant had a loud and profane verbal confrontation with his supervisor. The AJ found that Complainant failed to produce any direct or circumstantial evidence sufficient to support a finding of discrimination or to show that the Agency's reasons were pretext for discrimination. Therefore, the AJ determined that Complainant failed to show that he had been subjected to discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant did not raise any contentions about the AJ's decision which was adopted by the Agency. The Agency's brief however, requests that the finding of no discrimination be affirmed.
ANALYSIS AND FINDINGS
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. We find that a decision without a hearing was properly issued in this case as there are no material facts at issue. We find, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was told to wear his badge, he refused to do so, and thereafter had a loud and profane verbal confrontation with his supervisor. We find that Complainant has not presented any evidence which shows that the Agency's articulated nondiscriminatory reasons were pretext for discrimination. Accordingly, we find, the preponderance of the record evidence does not establish that discrimination occurred. The Agency's final notice which fully implemented the AJ's decision finding no discrimination is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_8/5/13_________________
Date
1 The record also shows that Complainant alleged as part of the consolidation and amendment of his complaints that he was subjected to retaliation and a hostile work environment when he experienced dissatisfaction regarding the processing of his complaint, as well as the denial of official EEO/Union time. The Agency did not accept these issues for investigation in the instant complaint but referred the matter to the Agency official responsible for the quality of complaints processing. Complainant also alleged that based on retaliation since July 10, 2007, he was denied steward release time and was not told that training was canceled and was not properly paid for training. The Agency dismissed this claim finding that the issue of granting union steward time and payment for travel time was covered by the Collective Bargaining Agreement and therefore the matter would be addressed in the negotiated grievance process that Complainant filed regarding these matters. Complainant also alleged that based on reprisal he was denied his fair share of overtime under the Family Medical Leave Act and the Fair Labor Standards Act. The AJ found that this did not come under the purview of Title VII and dismissed this claim accordingly. On appeal, Complainant did not dispute the Agency's or the AJ's findings regarding these issues therefore they will not be discussed in the instant complaint.
2 Complainant was also an EEO Representative.
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0120111216
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013