Santos D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 4, 20180120160620 (E.E.O.C. Apr. 4, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Santos D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120160620 Hearing No. 450-2014-0019X Agency No. 4G-760-0053-13 DECISION On November 3, 2015, 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 September 17, 2015, final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Prior to the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Brownwood Post Office located in Brownwood, Texas. Around February 15, 2012, the Agency administratively separated Complainant because he had been on the Office of Workers’ Compensation Program (OWCP) rolls for more than one year. Complainant eventually took disability retirement, effective April 9, 2012. 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. 0120160620 2 On May 15, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (Heat Exhaustion, Back Injury, Shoulder and Arm Injury) and reprisal (prior protected EEO activity) when, in early February 2013 and then subsequently on February 11, 2013, management refused to take his Form CA-2 (Notice of Occupational Disease), and/or fill out their portion of the CA-2. After 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. FACTUAL BACKGROUND Complainant identified two responsible management officials, a Supervisor, Customer Services at the Brownwood Post Office (S1) and the officer-in-charge of the Brownwood Post Office (OIC).2 S1 was Complainant’s previous supervisor and OIC never worked with Complainant or knew Complainant. S1 was aware of Complainant’s prior EEO activity that ended on July 6, 2011.3 Complainant claims that in February 2013, his wife (KH) entered the Brownwood Post Office by herself and attempted to turn in Complainant’s CA-2 for an alleged on-the-job injury that took place in 2010. An unidentified female management official refused to accept it from KH. Instead, the unidentified female management official informed KH that she could only accept the CA-2 from Complainant himself. According to Complainant on February 11, 2013, he and his wife returned to the Brownwood Post Office to submit his CA-2, and they first spoke with OIC.4 OIC advised Complainant that he understood he could not sign for anything from Complainant regarding workers’ compensation. At that point, Complainant called a retired union official (U1) who was helping him with this issue. Complainant told U1 that he was told he could not turn in the CA-2 because he is separated. Complainant handed the phone to OIC after he finished talking to U1, and OIC took Complainant’s phone to the back of the facility to speak with U1. OIC then returned with S1, who informed Complainant that they were instructed not to accept anything or sign anything. Thereafter, Complainant informed OIC and S1 that an unidentified injury compensation specialist told him to submit the CA-2 to the Post Office. S1 advised Complainant and his wife to call the specialist and have her send an email to the Post Office instructing them to accept the form. Complainant and his wife then left the building and placed a three-way call from their car 2 Complainant identified a third management official, but the record shows that she has no knowledge of any of the claims herein. 3 Aside from Complainant’s bare, uncorroborated assertion, the record is devoid of evidence that any management official was aware of any other prior EEO activity. 4 The conversation was recorded. 0120160620 3 that included the unidentified injury compensation specialist and U1. The injury compensation specialist placed everyone on hold while she called the Brownwood Post Office. When she returned to the three-way call, the injury compensation specialist informed Complainant, his wife, and U1 that S1 had left the Brownwood Post Office by the time she called. There is no evidence that the specialist spoke to any management official at the Brownwood Post Office or otherwise instructed them to accept Complainant’s CA-2. Moreover, there is no evidence that the specialist followed her call up with an email or an additional call to S1 or anyone else at the Brownwood Post Office to have them accept Complainant’s CA-2 Form. Though the exact date is unknown, OIC testified that the District Office “called us a little bit later and told us we had to take [Complainant’s CA-2], so we sent him certified letters and left him voice mails asking him to bring it back in and we would take it from him.” Similarly, S1 testified that: “[the Human Resources Manager (HRM)] called [her] and told [her that she] had to accept it. Therefore, [she] immediately took action to accept it.” The record shows that HRM worked as the Manager, Health and Resource Management, Fort Worth District, and was not an injury compensation specialist.5 In a May 7, 2013 certified letter to Complainant, S1 documented her actions to accept his CA-2 Form immediately after speaking to HRM. Complainant’s attorney responded on May 28, 2013 by sending the following forms to S1: (1) Complainant’s CA-2 Form dated February 11, 2013 for an alleged injury on May 8, 2010; and (2) medical documentation dated April 13, 2012 from Complainant’s physician. The Agency received it on June 1, 2013 and filed it with the OWCP on June 11, 2013. OWCP accepted Appellant’s compensation claim on September 9, 2013. 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”). 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). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference 5 The Agency disputes that management was contacted by an injury compensation specialist at any time. According to S1, the first call was from HRM. 0120160620 4 of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record we find insufficient evidence to prove that Complainant’s second visit at the Brownwood Post Office occurred on February 11, 2013. Both Complainant and his wife assert that it took place on February 11, 2013. However, S1 asserts it took place on April 27, 2013. While the second visit to the Brownwood Post Office was recorded, the evidence establishing the date such recording took place comes solely from Complainant and his wife’s testimony. The documentary evidence shows that Complainant’s CA-2 Form is dated February 11, 2013, which suggests that February 11, 2013 was the first visit to the Brownwood Post Office, not the second visit. Complainant testified that his wife came in alone on the first visit with the CA-2 Form which had to be dated on or before that first visit. Secondly, the record shows that the medical records attached to the CA-2 Form were dated April 13, 2013, which further support the conclusion that the second visit occurred in April 2013. If the second visit occurred in April 2013 rather than February 2013, then a delay in processing Complainant’s CA- 2 Form is not established. However, assuming the second visit occurred in February 2013, the record contains insufficient evidence establishing that the delay in processing the CA-2 Form was motivated by retaliatory or discriminatory animus. The record shows that S1 only had knowledge of Complainant’s prior EEO activity that ended approximately one year and seven months before the February 2013 visit. Under Commission precedent, Complainant’s EEO activity is too remote in time to create an inference of retaliation. Complainant asserts that S1’s retaliatory animus is evidenced by the following response she made in her affidavit to a question about her knowledge of Complainant’s prior EEO activity: “…. [Complainant] has filed EEO complaints in the past. The union even stopped accepting paperwork from him.” We do not find this statement to be sufficient evidence of retaliatory animus on the part of S1. Complainant provides no other evidence of retaliatory animus, aside from his bare uncorroborated assertions. Accordingly, we find insufficient evidence in the record to prove unlawful retaliation. We also find the record devoid of evidence that any responsible management official held discriminatory animus based on Complainant’s medical conditions. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s finding that Complainant failed to prove his claims by a preponderance of the evidence. 0120160620 5 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 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. 0120160620 6 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 April 4, 2018 Date Copy with citationCopy as parenthetical citation