0120091873
10-29-2009
Sean S. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sean S. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091873
Agency No. 1H-336-0088-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 12, 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 Mail Processing
Clerk, PS-06, at the agency's Tampa Processing and Distribution Center
in Tampa, Florida.
On September 10, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On October 21, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
in reprisal for prior protected activity when:
1. on October 11, 2008, he was issued a Letter of Warning; and
2. on August 27, 2008, he contacted Human Resources regarding pay
problems. 1
On November 7, 2008, the agency issued a partial dismissal. The agency
accepted for investigation claim 1. The agency dismissed claim 2 on
the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2) and on the alternative grounds of failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The record reflects that in his affidavit response, complainant requested
that the formal complaint be amended to include the following two claims
of discrimination in reprisal for prior protected activity:
3. on December 4, 2008, he was given an Investigation Interview; and
4. on December 13, 2008, he was issued a Notice of a 7-Day Suspension.
The record further reflects that the agency granted complainant's request
to amend his formal complaint to include claims 3 and 4.
On December 12, 2008, the agency issued a partial dismissal. The agency
accepted for investigation claim 4. The agency dismissed claim 3
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim,
finding that complainant was not aggrieved.
At the conclusion of the investigation, 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 March 12,
2009, pursuant to 29 C.F.R. � 1614.110(b).
In its March 12, 2009 final decision, the agency found no discrimination
concerning claims 1, 3 and 4.2 Specifically, the agency found
that complainant did not establish a prima facie case of reprisal
discrimination. The agency further found that assuming, arguendo, that
complainant established a prima facie case of reprisal discrimination,
management articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to show were a pretext.
Regarding claim 1, the Supervisor Centralized Attendance Control (S1)
stated that she was the deciding official to issue complainant a Letter
of Warning (LOW) dated October 11, 2008 following the December 4, 2008
Investigative Interview. A review of the October 11, 2008 LOW reflects
from February 3, 2008 to October 6, 2008, complainant had 24 occurrences
of unscheduled, non-FMLA protected absences. In the LOW, S1 notified
complainant that she hoped the letter would "serve to impress upon you
the seriousness of your actions and that future discipline will not be
necessary."
Regarding complainant's assertion that during the Investigative Interview,
complainant informed S1 that his absences should have been FMLA protected,
S1 stated that she explained to complainant "that he had used his allotted
480 hours of FMLA protection for the leave year 2008."
S1 stated that she issued complainant the Notice of 7-Day
Suspension dated December 13, 2008 for "Continued Unsatisfactory
Attendance/Tardiness/AWOL." S1 stated that previous efforts to correct
complainant's attendance deficiencies were not successful. A review of
the suspension letter reflects that from October 17, 2008 to November
29, 2008, complainant had 11 occurrences of unscheduled, non-FMLA
protected absences. Furthermore, S1 stated that during the relevant
time she was not aware of complainant's prior protected activity and
"would not consider them even if I did. My decisions were based on
[complainant's] attendance record."
The Acting Manager Distribution Operations (M1) stated that she was
the concurring official concerning complainant's Letter of Warning and
Notice of 7-Day Suspension. M1 stated that complainant "had run out of
his 480 FMLA leave hours and was continuing to have multiple unscheduled
absences, late arrivals to work, and even AWOL when he failed to call
off in time." M1 further stated that she did not discriminate against
complainant based on his prior protected activity.
On appeal, complainant contends that the FMLA Coordinator lied in her
affidavit claiming she had no involvement in his case. Complainant
further states "it was a conflict of interest for a FMLA Coordinator to
be working in Human Resources." Complainant states that the Commission
"had no right to delete the fact that I requested to be paid my back
pay and that was the basis for me being given a LOW and discipline.
Because I spoke to human resources in August of 2008."
Claims 1, 3, and 4
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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions which complainant did not prove were a pretext for discrimination,
and that complainant has not demonstrated that these reasons were a
pretext for discrimination.
The Commission determines that, on appeal, complainant has not provided
any persuasive argument regarding the propriety of the agency's finding
of no discrimination. The Commission determines that the agency conducted
a thorough investigation.
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 claims 1, 3 and 4 because the preponderance of the
evidence of record does not establish that discrimination occurred.3
Claim 2
In its November 7, 2008 partial dismissal, the agency stated that it
had dismissed claim 2 on the grounds of untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2) and failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1). The agency noted that according
to the EEO Counselor, complainant stated that he experienced three years
of pay problems. In her report, the EEO Counselor stated that complainant
"said that on August 27, 2008, he contacted Human Resources regarding
a pay problem. [Complainant] states that he is being double taxed and
his hours that he has worked for the last 3 years are being withheld."
The agency further noted that a review of the record reflects that in
or about September 2008, complainant was issued a check in the amount
of $134,461.77 for back pay and $57,753.59 for the interest based on a
settlement.
Upon a thorough review of the record, the Commission determines that the
matter raised in claim 2 constitutes, in essence, a claim relating to the
agency's failure to comply with a prior Commission Order. Complainant is
therefore advised to file a petition for enforcement with the Commission.
29 C.F.R. � 1614.503(a) provides that "[a] complainant may petition the
Commission for enforcement of a decision issued under the Commission's
appellate jurisdiction. The petition shall be submitted to the Office
of Federal Operations. The petition shall specifically set forth the
reasons that lead the complainant to believe that the agency is not
complying with the decision." Based on the foregoing, the Commission
determines that the agency properly dismissed claim (2) as a new claim.
Accordingly, for the reasons stated herein, we AFFIRM the agency's
dismissal of claim 2.
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
October 29, 2009
__________________
Date
1 For ease of reference, the Commission has numbered complainant's claims
as claims 1 - 2.
2 The record reflects although the agency dismissed claim 3 in its
December 12, 2008 partial dismissal for failure to state a claim, the
agency nevertheless addressed claim 3 on the merits in the instant final
decision.
3 Because we affirm the agency's finding of no discrimination concerning
claim 3 on the merits, we find it unnecessary to address the procedural
dismissal grounds (i.e. failure to state a claim).
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0120091873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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