0120152444
12-08-2017
Rufus G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rufus G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120152444
Agency No. 4G780008614
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 1, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Harlingen Post Office facility in Harlingen, Texas.
On March 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII, when:
1. On, or around, January 3, 2014, Complainant's supervisor changed his prime time annual leave selection;
2. Between February 21 - March 15, 2014, Complainant's supervisor discussed his mail volume with another carrier;
3. On February 21, 2014, upon his return from leave, he was forced to put in a repair tag for a vehicle that he was not the last person to drive;
4. On May 6, 2014, he was questioned about his leave request, told that he could only take leave for a set period, called stupid or dumb, and denied copies of his leave request;
5. On July 10, 2014, he was subjected to an investigative interview, subjected to inappropriate language and, on unspecified dates, he was given contradictory instructions;
6. On various dates, including August 2, 2014, and August 8, 2014, he requested that his Annual Leave be cancelled and management denied his requests;
7. His request to cancel annual leave submitted on August 8, 2014 was intentionally delayed for approval until August 21, 2014;
8. On July 16, 2014, he submitted a vehicle repair tag, and, as of September 2, 2014, management intentionally had not fixed his vehicle; and
9. On August 26, 2014, he was subjected to an investigative interview and subsequently, on September 27, 2014, he was issued a Seven-Day Suspension.
The pertinent record with regard to the claims before us reveals the following information.
Claim 1 - Change in his prime time annual leave selection
With regard to claim #1, Complainant requested annual leave, but he was not allowed to have his first choice. Management discovered that an error occurred, which allowed employees to select leave during a block of time that included non-selection weeks, per the Local Memorandum of Understanding (LMOU). Some weeks were supposed to be blocked off and unavailable. Complainant's first choice fell within that period. The 204b acting supervisor removed Complainant's prime time choice vacation selection from the sign-up sheet and substituted other weeks, not of his choice. Complainant was told that he would have to reselect. Two other employees, like Complainant, had to reselect because of the error.
No employee was allowed to bid the non-select week per the LMOU.
Claim 2 - Discussion of mail volume
With regard to issue 2, management denied discussing Complainant's mail volume with any carrier, but the management official testified that all mail volume was posted and was common knowledge to all carriers.
Claim 3 - Questions about his leave request
With regard to issue #3, management testified that Complainant noticed some front end damage which required front bumper repair. The Management official testified that it is the policy that any carrier who noted anything wrong with a vehicle was required to submit a repair tag. The Management official testified that he was not aware of which carrier was the last to use the damaged vehicle.
Claims 4 and 8 - Investigative interview and contradictory instructions
Complainant was given an investigative interview, but management denied making any inappropriate comments or questioning Complainant regarding his FMLA leave. There was no evidence that any of his FMLA leave requests were denied.
The record shows that he was given an investigative interview and seven-day suspension. Management averred that the actions were based on its determination that Complainant engaged in workplace violence against a Union Steward.
With regard to the investigative interview and seven-day suspension, Complainant acknowledged that the "seven-day suspension was settled in pre-arbitration on March 9, 2015 as non-precedential, non-citable basis."
Claim 5 - Management did not grant his request to cancel an earlier leave request
Complainant was on the schedule to report on July 10, 2014, but when the manager attempted to contact him, he could not contact Complainant on his cell phone. An investigative interview was conducted on July 11, 2014 for failing to follow instructions to report on scheduled overtime after Complainant could not be reached. The Supervisor denied using the term "smart ass comments," but he acknowledged said that he told Complainant that he did not need any "smart aleck answers" and to watch his tone.
The Supervisor denied knowing of Complainant's prior EEO activity.
Complainant averred that he was properly handling accountable mail in the same manner that he had been previously instructed to do. Management denied that Complainant was given contradictory instructions.
Claims 6 and 7 - Management delayed actions
With regard to Complainant's request that his earlier request for leave from August 31, 2014 to September 6, 2014 be cancelled, management informed Complainant that there was a process that had to be followed. Complainant was informed that he needed the endorsement of the union in order to allow management or the union to post that his annual leave was now available. Complainant refused and the supervisor returned the PS Form 3971 and told Complaint that he had to comply with the procedure for cancellation. His request to cancel annual leave submitted for August 8, was delayed. The management official denied that he delayed the processing of the PS Form 3971.
Although Complainant submitted the request to have the vehicle repair in July 16, 2014, he claimed management intentionally failed to fix his vehicle until September 2, 2014 we note that this issue was the subject of another appeal. For completeness of this record, we note that manager said that he assumed the vehicle had been fixed after he did not hear any other complaint from Complainant. The vehicle was fixed after Complainant resubmitted his request.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and 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).
Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that Complainant failed to establish the prima facie elements of his claims. Next, the Agency assumed, for purposes of analysis, that Complainant established a prima facie case of discrimination, but it found that it articulated legitimate, non-discriminatory reasons for its action and that Complainant failed to rebut the stated reasons. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant questions the applicability of the legal precedent on which the Agency relied. He also states that no employee picked the weeks that he picked on his first round and that "retaliation was a factor [because] the postmaster and the supervisor share the same work area." He asserted "the seniority list that management refused to submit would have shown the time frame as to when they retaliated and [management] removed his name as a punitive measure." Complainant argues that a union endorsement was not required for him to cancel his leave.
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").
Section 717 of Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . race." 42 U.S.C. Section 2000e-16(a). Retaliation is included as unlawful discrimination.
Here, Complainant alleges that the Agency subjected him to retaliation when it treated him differently than other carriers, because of his prior EEO activity. Even assuming for purposes of analysis that he established the elements of his prima facie case, we find that the Agency provided a legitimate, non-discriminatory reason for changing his prime time annual leave selection, requiring him to submit a repair tag for a vehicle, denying his request to cancel a leave request and suspending him.
With regard to the first claim, the record shows that certain weeks were not to be scheduled and that an error had taken place which allowed selections during the blocked off time. Further, there is no evidence that others with no prior EEO activity were treated any better than Complainant. Others received their first choice because they had greater seniority.
Moreover, the issue of seniority, compliance with the LMOU, and whether the Union endorsement was actually required in order for management to cancel his leave are not material to the question of whether the actions were based on retaliation. As to the issue of whether the actions were due to retaliation, we agree that there was insufficient evidence to show that the actions were due to retaliatory animus.
Consequently, for the reasons stated herein, we find that the Agency's decision was appropriate.
CONCLUSION
Based on our review, 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 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
December 8, 2017
__________________
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.
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