0120092372
09-17-2009
Ricky Hernandez, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ricky Hernandez, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092372
Agency No. 4G-752-0432-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's April 7, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a City Carrier at the agency's Preston Station in Dallas, Texas.
On October 27, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (Hispanic), sex (male) and in reprisal for prior EEO activity when:
(1) on July 16, 2008, he was issued a Notice of Removal effective August 29, 2008; and
(2) on September 3, 2008, he was informed by a union official that a Step B grievance decision upheld his removal.
On November 12, 2008, the agency issued a partial dismissal. The agency accepted claim (1) for investigation. The agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency stated that the instant complaint was an impermissible collateral attack on the grievance process.
At the conclusion of the investigation concerning claim (1), complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on April 7, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its April 7, 2009 final decision, the agency found no discrimination concerning claim (1). The agency found that complainant did not establish a prima facie case of race, sex and reprisal discrimination. The agency further found that assuming, arguendo, that complainant established a prima facie case of race, sex and reprisal discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Complainant's supervisor (S1) stated that she was the deciding official to issue complainant a Notice of Removal based on his unsatisfactory attendance. Specifically, S1 stated that complainant "incurred unscheduled absences, both coming in late for work and not coming to work at all. When questioned about his poor attendance he related that he had child care problems. I offered to give him a temporary change of schedule so that he could [get] to work on time and told him he needed to resolve his child care issues." S1 stated that complainant did not request a schedule change. S1 stated that during the relevant time complainant "just wouldn't work with us. His poor attendance got to a point that I asked him what was going on and he shrugged his shoulders and he understood I had a job to do and told me to do what I had to do."
S1 stated that she was one of the two supervisors at the Preston Post Office and they report to the Manager, Customer Services (MCS). S1 further stated that she discussed employees' attendance problems with the other supervisor and MCS, and "try to come to a consensus on action to take. Prior to the assignment of the second supervisor in August, I was more involved with employee discipline. We generally try to offer an employee with an attendance problem the opportunity to improve and as with the Complainant perhaps offer a chance of schedule." S1 stated that management had a discussion concerning complainant's poor attendance and determined to issue complainant the removal action. S1 stated that at that point, complainant "was up to a fourteen day and he was up to a progressive step of a removal." S1 stated that management was familiar with complainant's attendance record through a review of his PS Form 3972, Attendance Analysis and TACS reports reflecting his absences from work. S1 stated that she also reviewed complainant's prior discipline and considered "the fact that we did try to work with him by extending him the offer of a temporary schedule change."
Further, S1 stated that when asked about his continued unsatisfactory attendance, complainant promised to do better "however, he never did." S1 stated that even after the issuance of the Notice of Removal, complainant's attendance did not improve and that there was no effort on his part to create an improvement in his attendance record that would mitigate the removal action." S1 stated that complainant was in violation of Sections 511.43 and 665.4 of the Employee and Labor Relations Manual which states "employees are required to be regular in attendance; and to make every effort to avoid unscheduled absences." Moreover, S1 stated that complainant's race, sex and prior protected activity were not factors in her determination to terminate him from agency employment.
MCS stated that she was the concurring official concerning complainant's removal. MCS stated that S1 and another supervisor report to her and "we review employee attendance as a management team. If discipline is warranted the supervisor submits the request and I concur." MCS stated that in the instant case, S1 submitted the request for complainant's removal and "I reviewed and concurred with the request." MCS stated that she was personally aware of complainant's attendance difficulties. Specifically, MCS stated that the eRMS system "is set up to generate an automatic email to me whenever the Complainant would call-in for an absence. My supervisors would also notify me when he did not report for duty. I also reviewed the documentation associated with the request for discipline which included PS 3971s and TACS reports associated with his absences." MCS stated that "management (including myself) held discussions with the Complainant regarding his absences; we reviewed his PS Form 3972, Absence Analysis, with him and repetitively notified him of his attendance deficiencies. He was simply non-cooperative and refused to improve."
Further, MCS stated that management gave complainant an opportunity to change his schedule "but he continued to be late or absent." MCS stated that complainant was given an opportunity to relocate to another operation in the collections section "because he would be able to come in late; however, he refused to do it." MCS stated that when questioned about his attendance difficulties, complainant stated that he had child care issues and that he was trying to apply for a position closer to his home. MCS stated "I made [Complainant] aware that he probably not be accepted for reassignment because of his attendance deficiencies. His total circumstance indicated that he could not or would not correct his attendance deficiency." Furthermore, MCS stated that she did not discriminate against complainant based on his race, sex and prior protected activity.
A claim of disparate treatment is examined under the three-party 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).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions, that were not a pretext for discrimination.
On appeal, complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. 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 concerning claim (1) because the preponderance of the evidence of record does not establish that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
September 17, 2009
__________________
Date
1 On appeal, complainant does not challenge an agency November 12, 2008 partial dismissal regarding claim (2). Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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