Reggie D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionAug 24, 20160120142649 (E.E.O.C. Aug. 24, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reggie D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142649 Hearing No. 550-2014-00226X Agency No. 4F-956-0127-08 DECISION On July 17, 2014, Complainant filed an appeal from the Agency’s June 23, 2014, 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., 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 deems the appeal timely and accepts it for de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Rural Carrier at the Agency’s Cedar Station facility in Fresno, California. On April 8, 2008, the Customer Services Supervisor (CSS) issued him a letter of warning for extended absence between October 16, 2007 and February 27, 2008. Investigative Report (IR) 294-97. Complainant initiated counseling on April 17, 2008, but the process stopped when the parties entered into a settlement agreement on June 20, 2008, pursuant to which the letter would be rescinded if Complainant took disability retirement, which he did on February 28, 2009. IR 256-57, 298-99. After a long and complicated procedural history 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. 0120142649 2 involving multiple claims unrelated to the instant matter, however, the case was eventually remanded to the Agency with an order for processing to recommence, beginning with the filing of a formal complaint on January 23, 2013. See AJ’s decision, pp. 4-7; Notice of Final Action, p. 1. In that complaint, Complainant alleged that the CSS discriminated against him on the bases of national origin (Hispanic), sex (male), religion (Catholic), color (Brown), disability 2 (bursa in the right shoulder, carpal tunnel syndrome), age (51), and in reprisal for prior protected EEO activity by issuing him the April 2008 letter of warning. At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s May 13, 2014, motion for summary judgment and issued a decision on June 13, 2014, without holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his disparate treatment claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether the CSS was motivated by unlawful considerations of his religion, gender, disability, national origin, age, skin color, or previous EEO activity when she issued him the letter of warning on April 8, 2008. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). He may do so by showing that the reasons articulated by those officials for reprimanding him were pretext, i.e., not the real reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Neither Complainant nor the CSS provided an affidavit to the investigator, presumably because neither was employed by the Agency while the investigation was taking place. IR 254, 257. The only witness who did provide an affidavit was the Labor Relations Specialist with whom Complainant’s union representative had negotiated the settlement agreement in June 2008. She averred that it was her understanding that the letter of warning was issued because of Complainant’s attendance problems. The record in this case does not include any sworn statements from other witnesses or documents which contradict the explanation provided by the 2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. 0120142649 3 Labor Relations Specialist, or which call her veracity into question. Accordingly, we agree with the AJ that Complainant has not raised a genuine issue of material fact concerning the CSS’s motivation in issuing Complainant the letter of warning on April 8, 2008. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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 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). 0120142649 4 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 August 24, 2016 Date Copy with citationCopy as parenthetical citation