0120112183
02-29-2012
Ramon V. Aguirre, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Ramon V. Aguirre,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112183
Hearing No. 550-2010-00299X
Agency No. 4F-945-0064-10
DECISION
On March 10, 2011, Complainant filed an appeal from the Agency’s
February 10, 2011, notice of 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. For the following reasons,
the Commission AFFIRMS the Agency’s notice of final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s San Jose Parkmoor Station in San
Jose, California. Complainant's first-line supervisor was Manager 1, the
Supervisor of Customer Service. Complainant's second-line supervisor was
Manager 2, Manager of Customer Services. Complainant filed a previous EEO
complaint in 2003. Prior to the incidents at issue in this complaint,
Complainant had been issued a Notice of Removal for failure to report
a hit and run accident on April 6, 2009 by Supervisor X.
Complainant filed an EEO complaint dated March 12, 2010, alleging that
the Agency discriminated against him on the bases of national origin
(Filipino) and in reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when:
1. On November 17, 2009, Complainant was issued a Notice of Removal
for Falsification of MSP Scans/Expansion of Street Time/Failure
to Follow Instructions/Improper Clock Rings/Unsatisfactory Work
Performance/Unauthorized Overtime;
2. On November 18, 2009, Manager 2 stated "We will get rid of all
Filipinos";
3. On December 9, 2009, Complainant was issued a 7-Day Suspension for
Failure to Follow Instructions/AWOL; and
4. On January 13, 2010, Complainant was issued a Notice of
Removal for Failure to Follow Instructions/Unsatisfactory Work
Performance/Unauthorized Overtime.
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). Complainant
timely requested a hearing. The Agency filed a motion for a decision
without a hearing dated December 7, 2010. Complainant filed an objection
to the Agency’s motion for a decision without a hearing. The Agency
then filed a reply to Complainant's objection. On January 24, 2011,
the AJ assigned to the case granted the Agency’s motion and issued a
decision without a hearing on January 24, 2011.
In her decision, the AJ found the Agency articulated legitimate,
non-discriminatory reasons for issuing Complainant the discipline at
issue, namely Complainant's misconduct and performance issues. The AJ
determined Complainant had not demonstrated that the Agency's stated
reason for the discipline was a pretext for discrimination or retaliation.
Moreover, with regard to the isolated comment described in issue (2),
the AJ noted the comment occurred only once in a joking and bantering
context and was not directed toward Complainant, who happened to overhear
the comment. The AJ stated that although the comment was offensive to
Complainant, it did not create a hostile work environment that negatively
altered the conditions of his employment.
The Agency issued a notice of final action on February 10, 2011.
The Agency’s notice of final action fully implemented the AJ’s
finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R.§ 1614.405(a). See EEOC Management
Directive for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Nov. 9, 1999)
(explaining that the de novo standard of review “requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC
“review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission’s own assessment of the record and
its interpretation of the law”).
Upon review of the record, the Commission determines that there are
no genuine issues of material fact or any credibility issues which
required a hearing. Moreover, we find the record in the present case
was fully developed. Under these circumstances, the Commission finds
that the AJ's issuance of a decision without a hearing was appropriate.
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental
Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For Complainant to prevail, she must first establish a prima
facie case 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.
McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In the present case, the Agency has articulated legitimate,
non-discriminatory reason for its actions. With regard to issue (1), the
record shows that on October 7, 2009, Manager 1 instructed Complainant to
leave the office at 8:15 a.m. to begin street delivery. Complainant's
clock rings show that he left the office for the street at 8:15 a.m.
Complainant called the office at 12:27 p.m. to inform Manager 1 that
he was running 40 minutes behind, and also had an additional one hour
of "pivot" to deliver, meaning he was one hour and 40 minutes behind
on his street delivery. Manager 1 conducted a just cause interview
with Complainant to determine why it took him so long to complete his
morning deliveries. During the interview, Complainant admitted that he
left the office later than instructed and falsified his clock rings and
MSP scans to make it appear as if he had left on time. Manager 1 issued
Complainant a Notice of Removal on November 17, 2009. On December 29,
2009, Manager 2 reduced Complainant's removal to a 14-day no time off
suspension to be removed from his file on October 7, 2010.
With regard to issue (2), the record reveals that on November 18, 2009,
Manager 2 was talking with some carriers, including two Filipino carriers
(Carrier 1 and Carrier 2). The AJ noted that Manager 2 asked Carrier 1
why he had returned late, and Carrier 1 responded "Only the Filipinos."
Manager 2 then responded "We should get rid of all the Filipinos."
The record reveals that the two carriers and Manager 2 laughed.
Although he was not part of the conversation, Complainant overheard the
comment about getting rid of the Filipinos and asked Manager 2 "Aren't
you married to a Filipino?" to which Manager 2 responded “Filipina.”
Approximately one month after making this remark, Manager 2 reduced the
Notice of Proposed Removal discussed in issue (1) to a suspension, thus,
saving Complainant's job.
With regard to issue (3), the record reveals that on Monday, November
23, 2009, Complainant informed management at 7:10 a.m. that he had a
doctor's appointment at the VA Hospital that day. Complainant told
management that he had scheduled the appointment the previous Friday but
he did not notify management of the doctor's appointment until the day
of the appointment. When management asked him Complainant if he could
reschedule the appointment, he responded "no." Management instructed
Complainant to bring in documentation to substantiate that the medical
appointment had been previously scheduled. When Complainant returned
to work the following day, he provided a doctor's note indicating that
he had been seen on November 23, 2009, and produced an appointment card
indicating he had a future appointment on December 7, 2009; however,
he did not provide documentation to substantiate his claim that the
appointment had been previously scheduled. After consulting with Labor
Relations, Manager 1 issued Complainant a Notice of 7-Day Suspension
for Failure to Follow Instructions/AWOL. Manager 2 incorporated this
suspension into the mitigation of the proposed removal (discussed in issue
(1)), reducing both disciplinary actions to one two week suspension.
With regard to issue (4), the record reveals that on December 21, 2009,
Manager 1 instructed Complainant to leave the office for street delivery
by 9:45 a.m. and to return by 5:00 p.m. Complainant left at 9:56 a.m.,
but stated he did not recall being instructed to return by 5:00 p.m.
The record reveals Complainant did not return until 6:38 p.m. and did
not call to notify management that he would not be returning by 5:00 p.m.
After consultation with Labor Relations, Manager 1 issued Complainant a
Notice of Removal on January 13, 2010. Manager 2 reduced the discipline
to a 14-day suspension, thus saving Complainant's job.
The record reveals that Manager 1 issued notices of removal and 7-day
and 14-day suspensions to seven other carriers, including Filipino,
Caucasian, African-American and Indian carriers with and without prior
EEO activity. The record also shows that an eighth carrier, Carrier 3,
who is also Filipino and has no prior EEO activity, was issued only an
official discussion for using unauthorized overtime because he did not
have any previous discipline.
Upon review, we find that Complainant failed to show that the Agency’s
articulated reason for issuing him progressive discipline based on his
misconduct and performance issues was a pretext for discrimination or
retaliation. While Complainant argued that Manager 2's statement about
Filipino workers infers a discriminatory bias, we note that Manager 2
mitigated the two proposed removals to 14-day suspensions. Additionally,
we find the isolated comment in issue (2), was not sufficiently severe
or pervasive to constitute harassment.
CONCLUSION
The Agency’s notice of final action finding no discrimination is
AFFIRMED.
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 29, 2012
__________________
Date
2
01-2011-2183
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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