0120114078
02-09-2012
Joseph M. O'Malley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Joseph M. O'Malley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120114078
Agency No. 4B-028-0003-11
DECISION
On August 31, 2011, Complainant filed a timely appeal from the Agency’s
August 18, 2011, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal
pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Carrier Technician at the Agency’s Boston-East Weymouth Branch
Office facility in East Weymouth, Massachusetts.
On January 24, 2011, he filed an EEO complaint, as amended, alleging he
was discriminated against:
1. based on his age (44) and reprisal for prior EEO activity under the
ADEA when, on January 13 and 14, 2011, he was charged Leave Without Pay
(LWOP), and January 25 and 26, 2011, he was charged Absent Without Leave
(AWOL); and
2. based on EEO activity under the ADEA when:
(a) on February 16, 2011, he was ordered off the workroom floor and told
to go home without pay; and
(b) on April 7, 2011,he was issued a letter of warning.1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ).
When Complainant did not request a hearing, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove discrimination.
Complainant’s first line supervisor (S1, age 51) during January and
February 2011 stated he believed Complainant was in his early 30s.
He was aware that Complainant had prior EEO activity. S1 is the
Supervisor of Customer Services. On claim 1, S1 explained that for each
set of consecutive days off Complainant called in sick two days before an
off day. S1 stated that for each set of absence days he left a telephone
message at Complainant’s residence that he needed doctor documentation
for the leave. According to S1, Complainant contended he did not get the
messages. S1 stated this was the second time Complainant called in sick
prior to his days off, and he was directed to put in for LWOP or AWOL.
S1 stated that in the past year he charged others with LWOP after they
requested unscheduled sick leave. They were carriers aged 44, 54, and
56, and himself. S1 stated one carrier had EEO activity of filing a
statement in support of a fellow carrier’s EEO complaint, and the rest
had no prior EEO activity. S1 stated that any employee who called in
sick in relation to a day off who was not charged LWOP gave documentation.
According to EEO investigator, she clarified with S1 that it was the
Manager of Customer Services (S2, age 52) who directed him to charge
Complainant LWOP or AWOL. S2 stated she believed Complainant was in his
early to middle to middle 40s, and was aware he had prior EEO activity.
S2 stated she was not sure whether she charged Complainant with LWOP on
January 13 and 14, 2011, but S1 charged him with LWOP (meaning AWOL) on
January 25 and 26, 2011. S2 wrote that she has approved unscheduled leave
for carriers without charging LWOP when S1 was on an off-day or leave.
S2 indicated that Complainant was charged with LWOP and AWOL because
he did not provide requested documentation. S2 stated that in the last
year she did not charge LWOP in response to other employees requesting
unscheduled leave. These employees were a sum total of seven clerks
and Sales/Services/Distribution Associates ages 46, 51, 52, 52, 57,
58, and 62. S2 indicated none had prior EEO activity. S2 explained
that the above employees, unlike Complainant, provided documentation
when requested.2
Complainant countered that he followed procedures when he called in for
unscheduled sick leave, that he does not abuse sick leave, and younger
carriers use unscheduled sick leave and are not required to provide
evidence to substantiate their absence.
On February 16, 2011, the Acting Manager of the Wollaston post office
visited Complainant’s facility to walk a route. He was not displaying
an identification badge and was wearing street clothes. He stated that
he was talking to S1 when he heard Complainant loudly say “Can I help
you?” The Acting Manager stated that since he worked in the facility
in the past and knew the employees, he did not think the question
was directed to him. The Acting Manager stated that he continued the
conversation with S1 and Complainant hostilely yelled “Yeah, that’s
what I thought.” The Acting Manager stated he then looked up from the
desk and when his eyes met Complainant he yelled in a challenging tone
“What are you looking at?” In an email statement written the next
day, S1 stated the Acting Manager was standing next to the computer desk
asking questions about paperwork when verbalizations from Complainant
saying something like who are you came from the back of the carrier
section directed toward the supervisor’s desk.
The Acting Manager stated that he decided he needed to address
Complainant’s behavior because S1 did not seem to have any reaction
to it. The Acting Manager stated that to diffuse a potentially
aggressive situation, he told Complainant he wanted to speak to him in
the manager’s office, but Complainant refused. The Acting Manager
stated that he then approached Complainant’s case, and heard S1 say
“that is a manager of a station you need to do what he says.” He said
Complainant then stared directly at him and refused his second instruction
to go to the manager’s office, saying he wanted a steward. The Acting
Manager stated that after Complainant refused his third instruction to
go to the manager’s office, he told him to hit out on the clock and go
home. The Acting Manager stated he was Complainant’s supervisor for two
weeks in 2008, and was not aware of Complainant’s prior EEO activity.
Complainant wrote that while he was casing he noticed that a man
was staring at him from across the work floor. He stated that when
he noticed a few minutes later that the staring continued, he asked
“can I help you,” and after getting a strange look asked “why
are you looking at me?” Complainant stated the man told him to go to
the office, and did not respond to his repeat question of who he was.
Complainant acknowledged refusing the man’s instructions to go to
the office, saying he needed a steward. None was available that day.
Complainant denied raising his voice.
A number of Complainant’s co-workers gave statements about a month
after the episode. One said Complainant did not raise his voice, and
another said he did not see Complainant act rudely or belligerently.
A third wrote Complainant asked the Acting Manager why he was staring at
him and if there was a problem, and was not rude nor raised his voice.
Another wrote Complainant civilly asked the Acting Manager who he was,
as he had a right to know. One witnesses corroborated that the Acting
Manager asked Complainant to go to the office, and he refused to do so
without a steward.
Regarding issue 3, Complainant was given a letter of warning by S2
dated April 7, 2011, charging him with violation of Agency standards
of conduct/unacceptable conduct on March 25, 2011. In the letter of
warning, S2 wrote that Complainant spoke loudly across the workroom floor
and made derogatory statements toward management, was instructed several
times to work quietly and return to his assignment, and later that morning
told his supervisor at that time (S3) that if he did a street observation
of him, he would go home. The uncontested evidence shows that on March
25, 2011, Complainant spoke loudly across the workroom floor demanding to
know why one hour of first class mail was not delivered the day before.
S2 told Complainant to quietly work at his case and she would look into
it, but while she walked away Complainant demanded answers and made
(unspecified) derogatory statements. When S2 then told Complainant
she wanted to talk to him off the workroom floor, Complainant without
permission hit the clock to go on union time. S2 told Complainant
to return to work twice, and Complainant said he was on union time.
He gave the same response when S3 told him to return to work. S2 told
Complainant he was not following her instructions to return to work,
and Complainant then made a call from his personal mobile phone to the
union hall. After the call ended S2 instructed Complainant again to
return to work, and he did so. Later that morning Complainant told S3
that if he goes out and observes him on the street he would go home.3
On issue 1, the Agency found that Complainant did not establish a prima
facie case of age or reprisal discrimination. On age, the Agency
reasoned that Complainant did not show he was disparately treated.
On reprisal, the Agency found that Complainant created no inference that
his prior EEO activity led to the LWOP charge since he cited EEO activity
occurring on September 29, 2010, too distant a time to create a temporal
inference. The Agency found that in any case, S1 and S2 gave legitimate
non-discriminatory reasons for charging LWOP and AWOL, referring to the
reasons they gave discussed above. It found that Complainant did not
prove these reasons were pretext to mask discrimination.
On issue 2, the Agency found that Complainant did not establish a prima
facie case of reprisal discrimination because the Acting Manager was not
aware of Complainant’s EEO activity. The Agency also found that the
Acting Manager gave legitimate non-discriminatory reasons for sending
Complainant home, referring to the reasons he gave discussed above.
It found that Complainant did not demonstrate pretext.
On issue 3, the Agency found that Complainant established a prima facie
case of reprisal discrimination because S2, who issued the letter of
warning, was aware of Complainant’s EEO activity of the instant
complaint. The Agency found S2 gave legitimate non-discriminatory
reasons for giving Complainant the letter of warning, referring to
her statement. It found that Complainant did not give any reasons he
believed the Agency’s explanation was pretext to mask discrimination.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
We agree with the Agency’s finding that Complainant did not establish a
prima facie case of age discrimination on issue 1. S1 and S2 identified a
number of employees who asked for unscheduled leave who were the same age
or older than Complainant who were not charged with LWOP (nor presumably
AWOL). Complainant did not identify any younger employees who were
favorably treated on this. We find no inference of age discrimination.
We disagree with the Agency’s finding that Complainant did not
make out a prima facie case of reprisal discrimination on issue 1.
Complainant initiated contact with an EEO counselor on the instant
complaint on October 8, 2010, and the EEO counselor later interviewed
S1 and S2 on Complainant’s claims. Further, in October 2010, and on
multiple dates in January 2010, Complainant asked for official time
to meet with his EEO representative, and S1 and S2 stated they were
aware Complainant made requests for time to work on his EEO matters.
There is sufficient temporal proximity between this EEO activity and
the adverse action of charging Complainant with LWOP and AWOL to draw
an inference of reprisal discrimination.
The Agency explained that it asked Complainant to submit medical
documentation substantiating his unscheduled sick leave since it was
taken in association with off-days. It explained Complainant was charged
with LWOP on the first set of unscheduled days and AWOL on the second
because Complainant did not provide medical documentation, as requested.
Complainant has not shown that this explanation was pretext to mask
reprisal discrimination.
We agree with the Agency’s finding that Complainant did not make out
a prima facie case of reprisal discrimination on issue 2. The Acting
Manager, who sent Complainant home, was not aware of Complainant’s
prior EEO activity. Accordingly, we find no discrimination on issue 2.
We agree with the Agency’s finding that Complainant established a
prima facie case of reprisal discrimination on issue 3, which regarded
the letter of warning. S2 explained that she gave Complainant the letter
of warning based on his misconduct, which she described. Complainant has
not shown this explanation was pretext to mask discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s finding of no discrimination.
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
February 9, 2012
__________________
Date
1 The Agency dismissed other issues on various procedural grounds.
On appeal, Complainant does not challenge this. Accordingly, we do not
address the dismissals.
2 On February 3, 2011, the Agency resolved Complainant’s grievances
on the LWOP and AWOL by agreeing to grant Complainant sick leave for
these dates.
3 In a grievance, Complainant’s union steward wrote that things did
not occur as management claimed, and denied saying he would go home
if S3 did a street observation of him. There are no writings in the
record by Complainant, however, contesting the charges. In response
to the question in his affidavit on why he disagreed with the reasons
given for the letter of warning, Complainant indicated he did not know
why he got it, and could not give an answer.
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0120114078
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114078