0120140303
10-10-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120140303
Agency No. 4K-300-0027-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 10, 2013 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.
BACKGROUND
During the period at issue, Complainant worked as a Full-Time Rural Letter Carrier at the Agency's Kennesaw, Georgia Post Office.
On February 21, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when:
on November 9, 2011, he was placed on Emergency Placement Non-Pay Off-Duty and subsequently on or around November 30, 2011, he received a Notice of Proposed Removal.
After the investigation of the formal complaint, 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). Complainant initially requested a hearing. However, Complainant subsequently withdrew his hearing request. Consequently, the Agency issued the instant final decision on September 10, 2013, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Complainant, on appeal, argued that that the Agency erred finding no discrimination. For instance, Complainant argued that the Supervisor Customer Services was aware of his prior EEO activity and "took the actions at issue against within approximately three (3) months of such activity. Appellant notes the Agency has given different stories as to the individual responsible for issuing such discipline to disguise its retaliatory intent. The Agency has further been untruthful concerning the policies and procedures in place for handling the UBBM at issue."
The instant appeal followed.
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, 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Supervisor Customer Services stated that during the relevant time, she was Complainant's supervisor. The supervisor stated that on November 7, 2011, Complainant was assigned to Rural Route 34, and he had Marriage Mail to deliver that day.1 The supervisor stated, however, when Complainant returned to the facility, he disposed of the Marriage Mail in the Undeliverable Bulk Business Mail (UBBM) tub. The supervisor further stated that at the end of the work day "when UBBM was emptied that day, they were found."
Further, the supervisor stated that on November 9, 2011, she was the deciding official to place Complainant on an Emergency Placement in a Non-Pay status because he had willfully delayed mail by throwing mail with good delivery addressees into the UBBM. The supervisor stated that Complainant disagreed with her explanation by stating that "it was not first class [mail], and that the boxes were full."
The supervisor stated that on November 9, 2011, she conducted an investigative interview with Complainant and his representative. During the interview, the supervisor asked Complainant "if the addresses on the Marriage Mail that were found in his UBBM were good deliveries on his route. He affirmed that they were. I then asked why he did not deliver them. He told me that the boxes were full because he had delivered another set of circulars the previous day. I asked him who in management he told that he was bringing back mail with good delivery addresses. He stated no one. I asked why he threw them in UBBM. He replied that's what he has always done with them."
Following the interview, the supervisor issued Complainant a Notice of Proposed Removal dated November 30, 2011 for Improper Conduct and Unsatisfactory Performance. Specifically, the supervisor stated that Complainant threw "Marriage Mail papers into the UBBM for disposal rather than deliver it." The supervisor stated that Complainant was in violation of Section 661.2 of the Employee and Labor Relations Manual and Sections 132.1 and 132.5 of the Handbook PO-603.
Furthermore, the supervisor stated that Complainant's proposed removal was later reduced to a 7-Day paper suspension as a result of a grievance settlement. Moreover, the Supervisor stated that she did not discriminate against Complainant based on his prior protected activity.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. 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 because the preponderance of the evidence of record does not establish that discrimination occurred.
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, 2014
__________________
Date
1 It appears that the term "marriage mail" relates to a system where different mailers are placed in the same envelope, for delivery to the same household or establishment.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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