0120142047
10-23-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142047
Hearing No. 520-2014-00042X
Agency No. 4C-140-0014-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 24, 2014 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.
BACKGROUND
During the period at issue, Complainant worked as a City Letter Carrier at the Agency's Williamsville, New York Branch Post Office.
On March 11, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when:
on January 22, 2013, he issued a 7-Day No-Time Suspension for failure to follow instructions.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On August 30, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In his decision, the AJ found no discrimination. The AJ found that Complainant established a prima facie case of reprisal discrimination. The AJ found nevertheless that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the AJ found that Complainant was issued a 7-Day No-Time Suspension for failure to follow instructions.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because the Agency's investigation was inadequate. Specifically, Complainant stated that the AJ based his decision "on information taken from the investigative report done by the post office. That report has much information that is wrong and outright untrue." Complainant further stated that he provided evidence showing that "71 carriers committed the very same infraction during the period 1/2/13 thru 2/4/13 without being disciplined."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
In finding no discrimination, the AJ found that the record developed during the investigation established the following undisputed facts. The Williamsville Branch Post Office procedure requires carriers to call by 2:30 p.m. if they anticipate returning late to the office in order to prevent operational and financial problem with the Dispatch of Value departure (DOV). The AJ noted that the record reflects that Dispatch of Value is mail routing that initially takes mail that has been collected by carriers from the facility. The AJ further noted that the departure times for the DOV have been set since 2001, and the schedule is posted on the pivot board for the employees to view.
The AJ noted that the day in question was a Saturday and had an earlier DOV departure time. Because of the early departure time, carriers were expected to return to the office before 6:00 p.m. Complainant was on a rotating Saturdays-off schedule and regularly performed work on Saturdays. Complainant did not miss the DOV which left at 6:27 p.m. The AJ noted, however, Complainant did not call the office to notify the supervisors that he was going to be late. Consequently, Complainant was issued a 7-Day No-Time Suspension for failure to follow instructions. The AJ noted that the discipline was progressive in its nature and Complainant was given a suspension because he already had a Letter of Warning dated October 4, 2012.
The AJ noted that in her affidavit, the Supervisor, Customer Service, also Complainant's supervisor, stated that on January 12, 3013, Complainant returned to facility at 6:19 p.m. The supervisor stated that at that time Complainant "was given one hour of overtime and expected end tour by 5:30. Due to the earlier Dispatch of Value (DOV) on Saturday carriers are scheduled to return to the office prior to 6:00. [Complainant] did not verbally notify me that he would not make his scheduled end tour of 5:30 before he left for the street nor did he call prior to 2:30 as per local SOP to inform management that there were any unforeseen issues on the street that would prevent him from making his scheduled return time."
Further, the supervisor stated that the DOV in place at that time "has been established 4/2011, is posted and multiple announcements had been made as to the importance of returning from the street before 6:00. It is important for consumer reasons and for processing the mail so that it gets to the delivery units on time. I had also made announcements almost daily reminding carriers that Monday through Friday the cut off time was 5:50 and on Saturday, 5:45. [Complainant] was expected to be off the clock by 5:30. He failed to follow instructions and failed in his obligation to notify management if he could not end tour by 5:30."
The supervisor stated that Complainant was in violation of Section 665.15 of the Employee and Labor Relations Manual. The record reflects that Section 665.15 states that "employees must obey the instructions if their supervisors." Moreover, the supervisor stated that Complainant's prior protected activity was not a factor in her decision to issue him a 7-Day No Time Suspension.
The AJ noted that among the list of comparators provided by Complainant were two named employees. Complainant states that the two carriers were not disciplined after they missed the DOV time. However, the AJ noted that the record reflect that these carriers work on "combo" routes that are expected to return to the office after the DOV departure. The AJ noted that these carriers depart after non-combo carriers and have different schedules and expectations.
Furthermore, the AJ noted that Complainant named five other carriers who were disciplined for returning late from their routes. The AJ noted that the record reflects that none of the five carriers had prior protected activity. The AJ also noted that each of the carriers failed to call the office and report they were going to be late and each of them received discipline. The AJ noted that two out of the five carriers were issued discipline for returning late on January 12, 2013, the same date of Complainant's late return.
We find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
We also find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's prior protected activity. We discern no basis to disturb the AJ's decision.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.1
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 23, 2014
__________________
Date
1 On appeal, Complainant does not challenge the April 2, 2013 partial dismissal issued by the agency regarding one other claim (that he was discriminated against on the basis of reprisal for prior EEO activity when on December 28 and 29, 2012, he was assigned to a less preferred route. Therefore, we have not addressed this issue in our decision.
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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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