0120142052
10-24-2014
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. 0120142052
Hearing Nos. 430-2010-00303X
430-2010-00430X
Agency Nos. 4K-230-0018-10
4K-230-0067-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 17, 2014 final action 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Chesapeake, Virginia Main Post Office.
On February 24, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior EEO activity when:
1. on October 13, 2009, he was placed on Emergency Placement in an off-duty status without pay; and
2. on December 22, 2009, he was issued a Notice of Removal that was subsequently reduced to a 7-Day Suspension.
The record reflects that the AJ conducted a hearing on the complaint, consolidating it witih the complaint of a named African-American City Carrier's complaint on the same issues.1 Following a hearing held on March 5 and 6, 2014, the AJ issued separate decisions for Complainant and the other City Carrier. For Complainant, the AJ found that he did not establish a prima facie case of race and reprisal discrimination. The AJ further found that assuming Complainant established a prima facie case of race and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted the evidence established that the matters at issue arose following service reviews in various post offices in Chesapeake, Virginia, beginning in or around September 2009. The reviews, also called audits and "EXFC Service Reviews," were conducted because the Chesapeake Post Offices had received very low scores on a recent mail delivery test. The Chesapeake Post Office ranked last in the district on first class internal testing mail. The Manager of Postal Operations sent auditors to the six post offices in Chesapeake.
One of the auditors' tasks during the service reviews was to determine if any first class mail was in the carriers' Undeliverable Bulk Business Mail (UBBM) bins. The AJ noted, as its name suggests, that the UBBM is used for temporarily holding undeliverable bulk business mail. Mail in the UBBM is eventually destroyed. Therefore, the first class mail should not be placed in a UBBM.
The AJ noted that the record reflects there are different types of first class mail that a carrier might bring back to the post office after delivering his or her route. There is first class mail that the carrier attempted to deliver but was unable to do for several reasons. For instance, the customer's mail box might be full, the house might be vacant or the customer may have moved and there is no forwarded address. Carriers are supposed to return this mail to the post office and place it in an appropriate bin for further processing.
The AJ further noted another type of mail that a carrier might return to the post office after delivering his or her route is "collection mail" which is also called "outgoing mail." This is mail that the carrier collects from customers' mailboxes along the route. Collection mail has a "live" (un-cancelled) stamp on it. Immediately inside the door of the post office, there is a bin into which carriers are supposed to place this collection mail, which is then transferred to another location for processing. Because of the nature of collection mail, no delivery attempt has been made when the carriers brings it to the post office.
The AJ noted that first class mail is sometime found in a UBBM. The AJ noted that the record reflects that it is considered a more serious offense if it is a collection mail because no delivery attempt has yet been made.
The AJ noted that on September 30, 2009 an auditor conducted a service review at the Chesapeake Post Office. Following her review, the auditor sent an email to, among others, the Postmaster and the Manager of Postal Office Operations. The auditor's email states:
[Chesapeake Post Office address] 9/30/09 MORNING-MID-DAY
During the a.m. review prior to the carriers' arrival the following deficiencies were noted:
Rt 56 had (46) FCM (Outgoing mixed letter & flats) all originating 23320, found in 9/29/09 UBBM, mail immediately given to mgt to be sent out on the next dispatch [emphasis in its original].
Rt 56 had (1) FCM addressed [address provided] found in 9/29/09 UBBM
Rt 18 had (2) FCM addressed [address provided and address provided] and this route also had (2) Non Profit Org (Address Service Requested addressed [address provided], all four pcs found in 9/29/09 UBBM.
The AJ noted that the only portion in bold font was the reference to outgoing mail found in the Complainant's UBBM for Route 56. The AJ noted that Route 56 was assigned to Complainant.
The AJ noted that the record reflects after outgoing mail was found in his UBBM, Complainant was sent home on emergency placement and later issued a Notice of Removal. During a subsequent grievance process, the emergency placement was overturned and the removal was reduced to a 7-Day Suspension.
In the fall of 2009, several of Complainant's white co-workers were also found with first class mail in their UBBM's. On September 25, 2009, a white co-worker (CW1) was found to have first class mail in his UBBM. On October 8, 2009, another white co-worker (CW2) was found to have first class mail in his UBBM. On December 12, 2009, a third white co-worker (CW3) was found to have first class mail in his UBBM. Neither CW1, CW2 nor CW3 was subjected to emergency placement or proposed for removal. Instead, they were each subjected to a 7-Day Suspension No-Time Off which did not involve any loss of pay. In contrast, the 7-Day Suspension Complainant ultimately received did result in his losing pay.
Regarding claim 1, the AJ noted during his testimony the Postmaster stated that the auditor "did an audit because our scores were so low. My boss had given me a couple of weeks to change that, and we normally do what we call step audits to try to figure out why scores are low, why the mail is not getting delivered. Is it being misdelivered, is the carrier bringing it back off the step... what is happening to this office in Chesapeake, my six offices that we have such poor service scores as tested by IBM. So... we put all the carriers on notice of where we were, what we're doing, let everybody know that - - don't leave what we call 'sleepers' in the case. That means mail that's left in the case. Don't leave sleepers in your case. Don't put first class in UBBM . . . identify ever bundle mail, no mystery bundles. We call it a mystery bundle. It's a bundle that's sitting on the carrier's ledge, on the carrier's case, and nobody knows what the status of it, should it be delivered, what's the status of that mail....I didn't get any results from my audit. My boss, said, 'well, you're not able to resolve the issues. I'm going to send a team in there to find out what your problem is, because apparently you can't resolve it.' Which is kind of like deflating to me, because, you know, I'm the postmaster. I'm supposed to resolve these issues. So she sent [a named auditor]. [Auditor] went in the office, and she did the audits."
The Postmaster stated that during the audit, the auditor found 46 pieces of first class mail in Complainant's UBBM. The Postmaster stated that he had never seen more than two pieces of outgoing mail in a UBBM in the past. The Postmaster stated that he then directed Complainant's supervisor to place Complainant on emergency placement because "I'm adamant at this point that, you know, the corrective actions must be taken, and they know what corrective action, what this would lead to, that is, emergency placement." Specifically, the Postmaster stated that he told all of his managers that finding first class collection mail in a UBBM is a removable offense. Specifically, the Postmaster stated "now, if you can say six pieces is neglect - - if you understand what we do, you'd find how difficult it is to put six pieces of first class mail in UBBM. I mean, we have our separation, and we're taught, we're trained to separate the mail at all times. So we have a container here, a container here. They know to check it, and then they have to go back and review and check the mail that they bring back off the street before they put it in the UBBM. It's not an easy thing to do, to put first class mail in UBBM, six pieces. We keep that mail separate."
Further, the Postmaster stated if one first class mail is found in an UBBM which is "very rare, because it very seldom ever happened. But if it did, we took progressive discipline. But after 47 pieces were found in the UBBM, as far as I'm concerned, my boss is concerned, my bosses were concerned, there was zero tolerance."2 Moreover, the Postmaster stated that he did not discriminate against Complainant based on his race and prior protected activity.
Complainant's supervisor stated that when the auditor notified him that she found 46 pieces of first class mail in Complainant's UBBM, he contacted the Postmaster. The supervisor stated that the Postmaster directed him to place Complainant on emergency placement. The supervisor stated that during the relevant period, the Chesapeake Post Office was "ranking last in the district as far as first class internal testing mail." The supervisor stated that management conducted standups "to let everybody know that we are not doing well in the district and to make sure all your mail, outgoing mail, CFS mail, your 3M mail is put in appropriate areas."3
The supervisor stated that prior to the audit, there was one occasion when Complainant was issued a Letter of Warning because one piece of first class mail was found in his UBBM. The supervisor stated that before Complainant returned to work from being on emergency placement, he proposed that Complainant be removed from Agency employment. The supervisor stated, however, when Complainant returned to work, he moved to a different facility.
Regarding claim 2, the Postmaster stated that Complainant was issued a Seven-Day Suspension for having 46 pieces of first class mail in his UBBM. The Postmaster stated that he did not discriminate against Complainant based on his race and prior protected activity. Furthermore, the Postmaster stated "I'm not going in there to find out if he's white or black. That's not what I'm doing. I'm going in to find out who made the mistake. You know, I'm not looking for color. That's not my job. My job is to hold the people accountable who made the mistake."
With respect to Complainant's allegation that he was treated differently from two named white carriers who had collection mail found in their UBBMS, the AJ noted that in regard to one named white carrier, one piece of first class collection mail was found in his UBBM on September 3, 2009. The AJ found, however, that the responsible management official for the named white carrier's discipline was not involved in Complainant's discipline. Specifically, the AJ noted that the responsible management official issued the named white carrier a letter of warning, and that the responsible management official did not discuss the named white carrier's discipline with the Postmaster. Furthermore, the AJ noted that the named carrier did not work at the same facility as Complainant.
Regarding a second named white carrier, the AJ noted that 12 pieces of first class collection mail was found in his UBBM on December 12, 2009. The AJ further noted that the named white carrier was not sent home on emergency placement or removed but received a Seven-Day suspension. The AJ found, however, "the preponderance of credible evidence shows that the reason [named white carrier] received that discipline was because the Complainants' emergency placements and removals had already been overturned in the grievance process and mitigated to seven day suspensions."
Specifically, the AJ noted that more than one month before the named white carrier's infraction, the Dispute Resolution Team had overturned Complainant and a named African American City Carrier's emergency placement and ordered back pay. The AJ further stated "therefore, [supervisor] was instructed not to send carriers home on emergency placement for that infraction. On March 16, 2010, [supervisor] issued [named carrier] a notice of proposed removal (the same discipline as Complainant's received). [Manager] concurred in the notice of removal...However, on April 29, 2010, [Postmaster] reduced the proposed removal for [named white carrier] to a seven-day suspension...that was the penalty the Dispute Resolution Team previously found appropriate when outgoing first class mail was found in the UBBMs of [Complainant] and [named carrier]."
Further, the AJ acknowledged that evidence in the record reflects that the named white carrier was treated differently than Complainant. The AJ found, however, the facts simply do not suggest that the named white carrier was treated more favorable due to his race. Rather, the AJ found that the named white carrier was treated consistently with the prior decision of the Dispute Resolution Team. Furthermore, the AJ determined that the Postmaster "was not required to impose discipline on [named white carrier] that he knew would be overturned sand require payment of backpay."
The AJ noted that five Agency officials, including the auditor, Complainant's supervisor and the Postmaster were the same race as Complainant. Moreover, the AJ further stated "there is simply nothing in the record to suggest that five black Agency officials were motivated by unlawful race discrimination against the two black Complainants."
The Agency, in its final order, adopted the AJ's finding of no discrimination. The instant appeal followed.
Complainant, on appeal, argues that the AJ erred finding no discrimination. Complainant argues the AJ "in failing to find a disparity in treatment between the Black and White carriers, simply agreed with the agency's distinction without ever determining whether it was a meaningful distinction...in deferring to the agency, the Judge stated it was not the job of the Commission to question the agency's business judgment. However, the agency never articulated, much less proved, any business judgment decision distinguishing between the type of first class mail found in the UBBMs. In fact, all the mail was classified as first class mail and there is no distinction between the nature of the mail. The so-called 'live' stamp has no business meaning because the stamp had already been purchased and the Postal Service had received that revenue."
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 proven to be pretextual, is abundantly supported by the record, as referenced above. Beyond his bare assertions, Complainant does not point to evidence of record sufficient to prove that the reasons proffered for the disciplinary action were a pretext designed to mask the true discriminatory motivation.
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.
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 24, 2014
__________________
Date
1 The other named City Carrier has an appeal pending before the Commission, under Appeal No. 0120142051.
2 The record reflects that the Postmaster inadvertently identified the number of first class mail found in Complainant's UBBM as 47 instead of 46.
3 CFS is an abbreviation for Central Forwarding System which is mail that is being forwarded to someone who made a change of address and the customer wants his or her mail to be forwarded to his or her new address.
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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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