0120172448
05-15-2018
Roy E., Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area Operations), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roy E.,
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area Operations),
Agency.
Appeal No. 0120172448
Agency No. 4K-220-0004-17
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 18, 2017, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that the preponderance of the evidence in the record did not establish that Complainant was discriminated against based on sex and age.
BACKGROUND
At all times relevant to the issue in this complaint, Complainant was employed as a City Carrier, Q-01, at the Alexandria Post Office (Trade Center Station) in Alexandria, Virginia.
Complainant alleged that Manager, Customer Services, EAS-21 (the Manager), intentionally discriminated against him because of his age (52) when on October 7, 2016, he was issued a notice of removal (NOR) for failure to be regular in attendance.
Complainant averred that he was issued a NOR by Supervisor, Customer Services, EAS-17 (the Supervisor). He asserted that management cited attendance and absence without leave (AWOL) as the reasons for the removal decision.
Complainant further averred that he was detained by the justice system and he was unable to make a phone call. According to Complainant, he notified the Supervisor via text message that "it was a possibility that I would be detained."
Complainant acknowledged that he had been issued discipline prior to the issuance of the NOR.
The record includes an NOR issued by the Supervisor to Complainant dated October 4, 2016. In the NOR, the Supervisor notified Complainant of management's decision to remove him from employment because of Unsatisfactory Attendance/AWOL.
The Supervisor emphasized that during a 24-day period, Complainant was absent fourteen days. The Supervisor declared that Complainant had previously been disciplined for attendance issues, yet complainant showed no improvement. The Supervisor asserted that complainant's continuing failure to maintain the posted schedule was a serious violation of postal policy.
The Supervisor indicated in the NOR that a Pre-Disciplinary Interview (PDI) was conducted with complainant on September 8, 2016, to give Complainant an opportunity to explain the attendance issues. The Supervisor noted that when Complainant was asked for an explanation during the PDI, he responded that he was pulled over twice, he was in court, and he was given three days in jail. The Supervisor pointed out that when Complainant was asked why he did not return to work immediately after the three-day lock-up, Complainant responded, "Other issues came up." The Supervisor asserted in the NOR that Complainant's conduct violated numerous sections of the Employee and Labor Relations Manual, and the employee handbook.
The record includes notes of a PDI conducted on September 8, 2016. These notes reflect that Complainant reportedly was pulled over twice, went to court, and was given three days in jail. The notes indicate that Complainant produced no paperwork supporting his absences. The notes show that Complainant did not report to work following his three-day lock-up because, as he stated, "Other issues came up." The notes document that Complainant did not notify the Postal Office of his post-lockup absences because he did not know how long he would be absent.
The record includes a Disciplinary Action Request (DAR) completed by the Supervisor on September 8, 2016, and concurred in by the Manager on September 9, 2016. In the DAR, the Supervisor recommended removal of Complainant based on poor attendance. He cited numerous days when Complainant was AWOL between August 20 and September 12, 2016. He noted that Complainant had been previously instructed to call the station and speak to a supervisor or manager in the event of an absence, and he asserted that a text message was not acceptable. He pointed out that Complainant did not give a good explanation for failing to promptly return to work following a three-day lock-up.
The record includes a Just Cause Worksheet completed on September 8, 2016. In this document, management noted that Complainant constantly failed to report for work and failed to call to report his absence. The record also includes an Absence Analysis, PS 3972, which shows Complainant's attendance in 2016. The document shows that Complainant was AWOL on numerous days between August 20 and September 12, 2016, and that his overall attendance history in 2016 was poor.
The record further includes numerous PS Form 3971s (Request for or Notification of Absence) documenting that complainant was repeatedly AWOL during the period at issue. The record also includes a 7-Day Notice of Suspension given to Complainant on April 7, 2016, for (1) Unacceptable Attendance - AWOL; and (2) Failure to Meet the Attendance Requirements of Your Position.
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 Equal Employment Opportunity Commission 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 final decision pursuant to 29 C.F.R. � 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his removal from employment was discriminatory based on his age. He argues that the removal decision was unfair because management could have given him a disciplinary suspension instead. He summarily asserted that lesser discipline was issued to individuals at other stations.
In response to Complainant's appeal, the Agency contends that it presented legitimate, nondiscriminatory reasons for the removal at issue. The Agency further contends that Complainant's conduct also violated the Employee Labor Relations Manual and the Handbook M-41, City Delivery Carriers Duties and Responsibilities. The Agency urges that complainant's repeated failure to report for work negatively impacted complainant's delivery unit and could not be tolerated. The Agency argues that Complainant failed to establish that its legitimate, nondiscriminatory reasons were pretext for discrimination, and requests that its final decision be affirmed.
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 Chap. 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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, because the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).
To ultimately prevail in a discrimination case, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In an age discrimination case, a complainant can attempt to prove pretext by showing that he was treated less favorably than similarly-situated individuals who were outside his protected class. In order to be considered similarly situated for the purpose of creating an inference of unlawful disparate treatment, a complainant must show that all of the relevant aspects of his employment situation were virtually identical to his comparators' employment situations. Tolar v. U.S. Postal Service, EEOC Appeal No. 01965083 (Dec. 16, 1998). In particular, a complainant must show that the comparative employees reported to the same supervisor; were subject to the same standards; and engaged in conduct similar to complainant's, without material differentiating or mitigating circumstances. See Jones v. Dep't of the Interior. EEOC Request No. 05950175 (June 7, 1996). A complainant must also show that the comparator performed the same job function and was subject to the adverse treatment during the same time period. Mitchell v. U.S. Postal Service, EEOC Appeal No. 01A40524 (July 22, 2004), citing Allen v. Dep't of the Navy, EEOC Request No. 05900539 (June 15, 1990).
The Manager and the Supervisor explained that complainant was removed because of unacceptable attendance. They asserted that regular attendance by employees is a work rules requirement. They pointed out that the prior discipline received by Complainant was a determining factor in the decision for his removal from employment. The documented notes and record evidence buttressed with information in the employee manual and handbook provided by management establish non-discriminatory reasons for the removal decision.
In an effort to show pretext, Complainant argued that the removal decision was unfair because management could have given him a disciplinary suspension instead. However, Management did, in fact, give complainant a 7-Day Suspension on April 7, 2016, for poor attendance, yet complainant was not deterred in his behavior. Instead, the behavior worsened. Complainant was repeatedly absent even after he was released from his three-day lock-up, and provided no justification for his continued absences when he was afforded an opportunity to do so at the pre-disciplinary interview (PDI). We therefore find that Complainant has failed to present any plausible evidence that would demonstrate that management's reasons for its actions lacked a basis in the facts of the case or that his removal resulted from non-legitimate, discriminatory motives not articulated by management.
CONCLUSION
Complainant has failed to show by a preponderance of the evidence that the legitimate explanations given by the agency were pretext for discrimination. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
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
_5/15/18_________________
Date
2
01-2015-0594
6
0120150594