0120172787
08-21-2018
Robert D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Robert D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120172787
Hearing No. 471201600011X
Agency No. 4J493002815
DECISION
On August 14, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a) from the dismissal of his hearing request. At the time he appealed, the appeal was premature, because a final decision had not been issued. After Complainant filed this appeal, the Agency issued its September 14, 2017 final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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. We accept the appeal as an appeal from that September 14, 2017 final decision.
ISSUE PRESENTED
The issue is whether the Agency's decision finding no discrimination is supported by the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Assistant (RCA) (Probationary Employee) at the Agency's Westwood Branch facility in Kalamazoo, Michigan.
On March 25, 2015, Complainant contacted an EEO Counselor to complain about his initial assignment and to complain about poor training and management mistakenly accused of committing an infraction. This second matter was also the subject of a February 6, 2015 grievance that was settled on February 11, 2015.
On July 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (42), and reprisal for prior protected EEO activity under Title VII, when:
1. He was assigned to an RCA position, but hired as a City Carrier Assistant;
2. He was falsely accused of misconduct while out on this route;
3. He was given "bogus training;"
4. His work hours and scheduled days to work were cut back; and
5. On March 6, 2015, he received a Notice of Separation.2
The Agency characterized his complaint as alleging a single issue pertinent to his alleged wrongful termination. The record does not show that the Agency formally dismissed the other issues, but the record does show that the other claims were the subject of the grievance settlement.3
The Agency conducted an investigation and provided Complainant with a copy of the investigative report, as well as notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing.
The AJ denied the hearing request on the grounds that Complainant failed to show good cause for his failure to appear for the Initial Status Conference. The AJ remanded the complaint to the Agency for the issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b).
The pertinent evidence of record shows the following facts were established during the investigation concerning Complainant's claims of discrimination and retaliation:
Assignment as an RCA, Bogus Training, and False Accusation
Complainant is a tall, African-American man, age 42. He alleged that he was originally hired as a City Carrier Assistant (CCA) on November 14, 2014, but he was not called to report until a month later. He was then told the CCA position had been filled. On December 11, 2014, Complainant was placed in the Rural Carrier Associate (RCA) position. He said that when he reported, the Agency had a "package" on him that had been prepared by Human Resources. He was told to serve a probationary period of ninety (90) days actually worked or one year, whichever occurred first. He began training in the Kalamazoo Post Office on January 21, 2015.
Complainant asserted that he was assigned to a very poor trainer. Complainant was assigned to be trained by the person for whom he was serving as a back-up. Complainant stated that he raised concerns with management about the "bogus training" he was receiving. Complainant stated that he believed that the Caucasian female trainer "had a crush on him."
On February 6, 2015, two supervisors questioned Complainant about a complaint that management received from a customer. The customer described the carrier as being a tall African American man, about age 22. Complainant was questioned, because management believed that he fit the description of the person described in the customer's complaint, because he was a tall, African-American male, even though Complainant was 42 years old, not 22 years old. The customer's complaint pertained to another African-American male. Complainant filed a grievance alleging that management stereotyped him based on his race and height. The parties settled the grievance on February 11, 2015.
The next day, February 12, 2015, Complainant alleged that another co-worker (bi-racial female, older) told him that he (Complainant) was acting "like a Nigger." She told Complainant that he would have to "kiss ass around here if you want to make real money." Complainant stated that he complained to the Manager (Caucasian male, over 40) about these statements. Complainant stated that the Manager replied, "Don't your people say Nigger amongst each other anyway?" Complainant stated that he replied, "I refuse to respond to that type of ignorance."
The Manager denied any knowledge of being told about the comments or making the statement attributed to him. Complainant stated as he left the building, he overheard the Postmaster talking about him to his trainer. He alleged that he heard the Postmaster say, "That guy, what a [expletive] bum. I ought to fire his ass." The Postmaster denied making the statement.
Complainant said that thereafter, the Manager and another supervisor sent him home repeatedly with little or no work. When Complainant tried to reach the Postmaster, the Postmaster would not return his phone calls.
Notice of Separation
On February 23, 2015, Complainant saw the Postmaster. Complainant approached the Postmaster, who was talking with another employee at the time. Complainant asked him if he had received his messages and asked if he could speak to him. The Postmaster loudly told him that he had interrupted him. Complainant stated that he replied, "I'm sorry, but I said 'excuse me.'" Complainant then went back to work.
Later that morning, the Postmaster approached Complainant and told him to "follow me, NOW." Complainant requested a Union Steward be present for their conversation. Initially, the Postmaster refused to permit the Union Steward to be present, but he did allow the Steward to stay and observe. Complainant told the Postmaster that his first issue was that the supervisor "definitely has no training in diversity." He said that he did not have the proper training in dealing with someone like himself. He said the Postmaster kept interrupting him. Complainant called the Postmaster a liar several times. The Postmaster denied Complainant's statements. The record shows that Complainant was hostile, belligerent, and his fists were clenched. The record shows that Complainant stood up to go, and the Postmaster yelled at him to "sit down, right now!" Complainant ignored the instruction and continued to walk out, to go back to work, when the Postmaster shouted, "You're fired! Get off the premises." Complainant threw his badge on the floor. A number of people dialed 911 to summon the police. As Complainant was leaving, Complainant shouted to the African-American employees to "watch your back because they are out to get us."
Complainant later received the notice of separation that was signed by the Customer Service Supervisor (African-American female). The effective date of the termination was February 24 (or 23), 2015. The stated reason for the termination was unacceptable performance and unacceptable conduct.
Complainant compared his treatment to that of two other Caucasian employees. Neither were probationary employees. There is no evidence that others engaged in similar conduct and were retained. The record showed that a Caucasian female had been terminated during her probationary period. The record also showed an African-American man remained employed during his probationary period.
The Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency stated that Complainant testified that he did not engage in EEO activity until after he was fired on February 23, 2015. The Agency stated that its "review of the complainant's EEO record shows no history of EEO activity prior to the instant complaint with Complainant's initial contact on March 25, 2015." The Agency acknowledged that, on February 6, 2015, Complainant filed a grievance against two supervisors for racial stereotyping. The Agency concluded that the individual employees named by Complainant were not similarly situated because they were all USPS career employees with more than eight years of service. The Agency stated that in order to establish a prima facie case of age discrimination, the complainant must show that age was a determinative factor in management's decision-making. The Agency acknowledged that he established a prima facie case of retaliation, but did not show that he was treated differently than similarly situated individuals who were not members of his protected group.
The Agency stated that the record shows that management articulated legitimate, nondiscriminatory reasons for its actions. The Postmaster stated that he fired Complainant for Complainant's actions on February 23, 2015, when Complainant was volatile and refused to follow the Postmaster's instructions. The Agency concluded that "there was nothing in the record that showed by a preponderance of the evidence that the legitimate explanation given by the Manager [Postmaster] was pretextual." The Agency found no discrimination.
The Agency subsequently issued a decision, concluding that Complainant failed to prove that the Agency subjected him to the alleged discrimination.
Complainant is appealing the decision.
CONTENTIONS ON APPEAL
Complainant did not file a brief in support of his appeal. However, Complainant submitted a reply to the AJ's Order, which we have considered on appeal.
The Agency argued that the appeal should be dismissed as prematurely filed, because at the time of Complainant's filing of his appeal, the Agency had not issued a Final Decision.
ANALYSIS AND FINDINGS
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").
Initially, we note that Complainant does not challenge the AJ's dismissal of his hearing request or the Agency's failure to address Complainant's claims that he was sent home without work for several days and was not provided sufficient information in order to participate during mediation. Since these matters were not presented on appeal, we will exercise our discretion to focus on the decision on the merits with regard to the termination.
Section 717 of Title VII requires that federal agencies make all personnel actions free of race and sex discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race, color or sex"). Reprisal is also unlawful under Title VII. Similarly, Section 633(a) of the ADEA requires that agencies make all personnel actions free of age discrimination in the federal workplace.
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 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
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. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, the responsible management officials articulated legitimate, non-discriminatory reasons for each of its actions that did occur. Complainant was terminated based on his misconduct. There is no evidence that others who were similarly situated were treated better for similar conduct.
For these reasons, we find that Complainant failed to prove, by a preponderance of the evidence, that the Agency's proffered reasons were a pretext for unlawful discrimination on the basis of his race, sex, age or reprisal. Stated differently, he did not show that the Agency failed to make its actions free of discrimination through evidence proving that a protected basis - in this case, that his race, sex, age or reprisal was a factor in its decisions.
Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, for the reasons stated herein, we AFFIRM the Final Agency Decision.
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 tends 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. 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
August 21, 2018
__________________
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 Complainant also contends that he had a very unpleasant experience with Grand Rapids affiliate EEO counselor "who never bothered to contact him for mediation."
3 Complainant also alleges dissatisfaction with the EEO process. He stated that he requested mediation, but he claims that the EEO counselor neglected to advise him of the mediation and held the mediation without him being present.
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