Victor S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

2019002945 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victor S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2019002945 Agency No. 4C-150-0069-18 DECISION On January 29, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 19, 2018 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Manager, Customer Services at the Agency’s Woods Run Station in Pittsburgh, Pennsylvania. On May 14, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), sex (male), color (Black), disability (multiple sclerosis), and in reprisal for prior EEO activity when: 1. on April 10, 2018, he was placed on a Performance Improvement Plan (“PIP”); 2. on April 25, 2018, a promotion he had been awarded was rescinded; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s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. 2019002945 2 3. on April 27, 2018, he was given a Pre-Disciplinary Interview (“PDI”); 4. on May 12, 2018, the District Manager singled him out on a telecom; and 5. on May 15, 2018, he was issued a Proposed Letter of Warning in Lieu of a 7-Day Suspension, and subsequently, on June 15, 2018, he was issued a Letter of Decision upholding the discipline.2 After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its December 19, 2018 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS 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, she 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 2 The record reflects that claim 5 was later amended to the instant formal complaint. 2019002945 3 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant asserted that on April 10, 2018, he was placed on a PIP. The Manager, Customer Service Operations (African-American, light Black female) for the Pittsburgh Post Office stated that during the relevant period she was Complainant’s manager. On April 10, 2018, she placed Complainant on a PIP based on his poor performance. Specifically, the manager stated that Complainant failed to improve on the following areas: compliance, performance and scanning. The manager stated that before she placed Complainant on PIP, Complainant was issued a Letter of Warning concerning his performance. She stated that she met with Human Resources because Complainant told her he was overwhelmed and could not handle his job. The manager stated that Complainant was offered a downgrade “to a less demanding and stressful position. He was told he could downgrade all the way down to a level 17 without a reduction in pay.” The record reflects that Complainant refused to take a lower level position. The Acting Postmaster (Caucasian, White female) stated that she was the concurring official concerning Complainant’s PIP. The Acting Postmaster stated that she had a discussion with the manager about Complainant’s work performance before she sent it to the law department for approval. Regarding claim 2, Complainant alleged that on April 25, 2018, a promotion he had been awarded was rescinded. The former District Manager for Central Pennsylvania (Caucasian, White female) acknowledged awarding Complainant a promotion, but said she later rescinded it on April 25, 2018, after learning that he had been placed on a PIP. The manager confirmed that she did not speak with or inform the former District Manager for Central Pennsylvania that Complainant was placed on PIP prior to him being placed into his promotion assignment. Regarding claim 3, Complainant alleged that on April 27, 2018, he was given a PDI. The manager stated that on April 27, 2018, she conducted a PDI because Complainant did not follow her instructions. Specifically, the manager stated that Complainant was instructed to terminate a probationary employee for an “at fault” motor vehicle accident that cost the Agency thousands of dollars but he “chose to sign an agreement with the union to reinstate the probationary employee instead of following the instruction of his Manager.” Regarding claim 4, Complainant claimed that on May 12, 2018, the District Manager singled him out on a telecom. The manager asserted that she was also on the telecom and denied that Complainant was singled out. 2019002945 4 The record reflects that the telecom was to review safety issues such as motor vehicle accidents and injuries. The Acting Postmaster stated that she was in attendance during the telecom held by the District Manager for all accidents that occurred the prior week. She stated that Complainant was questioned just as every other Agency official that was on the telecom. Regarding claim 5, Complainant asserted that on May 15, 2018, he was issued a Proposed Letter of Warning in Lieu of a 7-Day Suspension, and subsequently, on June 15, 2018, he was issued a Letter of Decision upholding the discipline. The manager acknowledged that on May 15, 2018, she issued Complainant a Notice of Proposed Letter of Warning in lieu of a 7-Day Suspension for failure to follow her instructions. The record contains a copy of the May 15, 2018 Proposed Letter of Warning in Lieu of a 7-Day Suspension in which the manager placed Complainant on notice that he was being charged with improper conduct. Specifically, the manager explained that Complainant failed to follow her instructions when he signed an agreement with a labor organization related to a probationary employee who caused a vehicle accident. The manager noted that on April 20, 2018, Complainant signed an agreement with a union representative which states “the separation of [probationary employee] is rescinded. She will have her probation period extended 45 days. Her probation will end June 25, 2018. The extension is an agreement that allows management additional time to fairly evaluate her performance and safety work practices.” The manager further noted that she and Complainant had discussed this matter and “I informed you that this probationary employee was at-fault for a motor vehicle collision and I instructed you to separate her from employment. Contrary to my instructions you did not issue a probationary separation notice to [probationary employee]…you choose to disregard my orders and ‘settled’ an invalid grievance contesting a non-existent separation.” The Acting Postmaster stated that she was the concurring official concerning the proposed Letter of Warning because Complainant did not follow the manager’s instructions “when he brought back an employee who had an at-fault accident, causing damage to a privately-owned vehicle. This employee was still in her probationary period and conducted herself in an unsafe manner, causing an accident.” The record contains a copy of the Letter Decision - Proposed Letter of Warning in Lieu of a 7- Day Suspension dated June 15, 2018. Therein, the Acting Postmaster placed Complainant on notice that after a review of the record and meeting with Complainant, she affirmed the proposal to issue him a Letter of Warning in Lieu of a 7-Day Suspension. Specifically, the Acting Postmaster stated “in making my decision, I considered that you do have many years of postal employment. I understand that you have regrets and that you are making efforts to ensure these behaviors will not reoccur…however, every employee, regardless of their level, must follow the instructions of their managers.” 2019002945 5 Beyond his bare assertions, Complainant failed to produce any evidence that the proffered reasons provided by management witnesses for the disputed actions were a pretext masking discriminatory or retaliatory animus. We note again that Complainant provided no arguments on appeal. Finally, to the extent that Complainant also offered these five incidents in support of a discriminatory harassment claim, he again has simply provided no evidence to support his claim that his treatment was the result of his race, sex, color, disability and prior EEO activity. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2019002945 6 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 January 17, 2020 Date