0120114332
10-10-2012
Wilfredo Osorio, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Wilfredo Osorio,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120114332
Hearing No. 532-2009-00161X
Agency No. 4C-440-0126-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 31, 2011 final action 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 City Letter Carrier at the Agency's Lorain Carrier Annex in Lorain, Ohio.
On May 19, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), national origin (Hispanic), color (black), disability (ADAA/depression), and in reprisal for prior protected activity when:
on March 26, 2009 he was issued a Letter of Warning for Improper Conduct.
Following a hearing held on June 15, 2011, the AJ issued a decision on August 22, 2012, finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, national origin, color, disability and retaliation.1 The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. On August 31, 2011, the Agency fully implemented the AJ's decision in its final action.
The AJ noted that on March 24, 2009, the Postmaster of the Agency's Medina, Ohio Post Office was at the Lorain Carrier Annex to assist the Lorain Postmaster (LPM) conduct "3999s," street reviews of the carriers. The record reflects that while walking through the workroom floor on that day, the Medina Postmaster (MPM) greeted several letter carriers because he had previously worked at the Lorain Post Office as a carrier. Complainant approached MPM and used profanity in Spanish, accusing MPM of not hiring Complainant's son.
The AJ noted that MPM responded immediately to Complainant by stating that he was getting Complainant's supervisor (S1) and conducting a Pre-Disciplinary Investigation (PDI). The AJ noted that MPM asked S1 to get a union steward and Complainant because he was going to conduct a PDI for unbecoming conduct. The union steward objected to MPM for conducting the PDI on the grounds that MPM did not work in the Lorain Post Office. The AJ further noted that MPM reviewed what occurred with S1, and S1 conducted the PDI and issued Complainant the Letter of Warning (LOW).
Further, the AJ noted that Complainant disputed the LOW. Specifically, Complainant denied initiating the conversation with MPM or swearing at him. Complainant claim that MPM approached him and said "hey, what's up?" and in response, he shared his disappointment that he did not hire his son. Complainant denied speaking in Spanish to MPM.
The AJ noted that during his testimony, MPM stated that on March 24, 2009, he went to the Lorain Post Office to assist LPM with the 3999s. MPM stated that while walking to the supervisor's desk, he greeted several carriers. MPM further stated that Complainant "came up to me and said, 'that was fucked up, what you did.' And I [MPM] said, 'what are you talking about?' and he [Complainant] said, 'you didn't hire my son.' And I said - - I didn't say - - I just kind of shrugged my shoulders and he said in Spanish, he said, 'come mierda, vete para el carajo.'" Specifically, MPM stated "the literal meaning of 'come mierda' is you eat shit. Now, the slang Puerto Rican meaning of that is that you are a fake Puerto Rican, that you are not proud of your heritage. And 'vete para el carajo' means, the literal meaning, is - go to hell, but it's used also in slang as fuck off."
Further, MPM testified while he did not respond to Complainant's accusation, he told him that he was going to get S1 and "we're having a PDI and we're going to take this further.' I mean, I took corrective action. As a level 22 postmaster, whether I'm in my office or somebody else's office, I will uphold postal rules and regulations." MPM stated that he asked S1 to get a union representative and Complainant "because I was going to conduct a PDI for conduct unbecoming a postal employee. And the union steward at that time told me, 'you don't even work in this office. This isn't your office. You're not going to conduct a PDI.' So I told [S1], 'that's fine. She can conduct it.' I told her - - I reviewed what happened with her and she conducted the PDI." MPM stated that he was not present during Complainant's PDI. Moreover, MPM stated that he did not have anything to do with Complainant being issued a LOW "other than providing my statement or facts to [S1], no."
The AJ noted during her testimony, S1 stated that on March 24, 2009, MPM approached her and "said he needed a supervisor to conduct a PDI for him." Specifically, S1 stated that MPM told her that there was a confrontation between him and Complainant, and wanted a PDI done on Complainant. S1 testified that MPM informed her that the confrontation was about Complainant's son and that Complainant "was upset because he didn't hire his son in Elyria, [Ohio] so I guess he had said some things." S1 stated that according to MPM, Complainant "had called him a fake Puerto Rican and he said that [Complainant] told him to fuck off."
Further, S1 testified that when she conducted the PDI, it was only she, the union representative and Complainant present. S1 stated that Complainant told her that MPM "approached him and he also said that he did not say anything that he was accused of, and as a matter of fact, there's no word in Spanish for fuck off." S1 stated that she made a decision to issue Complainant a LOW based on what "I just took what I knew with [Complainant] and what I knew with [MPM] and I weighed the difference and came up that he deserved the discipline." S1 stated that during the relevant period, MPM never made a suggestion to her what the outcome of the PDI should be. S1 stated that she found MPM was more believable than Complainant because Complainant "was upset and he had said it on several occasions about [MPM] not hiring his son. He said on several occasion that Lorain did not hire his son. So I know if something was said, it probably was said."
The record contains a copy of Complainant's LOW dated March 25, 2009. Therein, S1 determined that Complainant was in violation of Sections 665.15 "Obedience to Orders," 665.16 "Behavior and Personal Habits," 665.24 "Violent and/or Threatening Behavior," and Section 656.6 "Disciplinary Action" of the Employee and Labor Manual, Section 665 of the Employee and Labor Relations Manual, and Section 112 of the M-41 City Delivery Carriers Duties and Responsibilities.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his representative, argues that the AJ erred finding no discrimination. For instance, Complainant argues that the AJ refused to let his union representative testify and "also refused to allow affidavits to be filed in this case." Complainant further argues that he was not allowed adequate time "to prepare for the hearing and was not allowed to finish questioning [Postmaster]. The questioning was stopped even though [Postmaster] was present the day of the incident. Due to these errors in judgment and the failure of [AJ] to allow for a Spanish-speaking witness when it was questioned we believe the decision is in error and judg[ment] should be found in his favor of discrimination and retaliation."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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 10, 2012
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
2 On appeal, Complainant does not challenge the June 15, 2009 partial dismissal issued by the agency regarding five other claims (that he was discriminated against on the bases of race, national origin, color, disability and in reprisal for prior EEO activity when in 2004, his son was not hired by the Postal Service; in 2006, his niece was not hired by the Postal Service; on April 30, 2009, while on his route, management made a remark implying he was cheating on his wife; on unspecified dates he Postal Service has spied on him and his representative; and on unspecified dates management has subjected him to hate crimes). Therefore, we have not addressed these issues in our decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120114332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114332
7
0120114332