2020000237•EEOC Appeal 2020000237
Testo completo
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garth N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020000237 Agency No. 4C-080-0103-18 DECISION On September 12, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 23, 2019 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Lancaster Post Office in Wilmington, Delaware. On July 11, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), national origin (African- 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website.
2 2020000237 American), color (black), sex (male), religion (Catholic),2 disability,3 and in reprisal for prior EEO activity (Agency No. 4C-080-0022-18) when: 1. on March 12, 2018, he was issued a Notice of Removal; and 2. on December 10, 2018, he was put on Emergency Placement in an Off-Duty Status.4 After the investigation of the formal complaint, the Agency issued the instant final decision on August 23, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. 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). 2 The record reflects that during the investigation, Complainant removed religion as a basis. 3 Complainant identified his disabilities as rib cage dysfunction, thoracic back pain, Scapulothoracic Syndrome, abnormal posture, myofascial pain, and cervical disc disorder. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 4 The record reflects that claim 2 was later amended to the instant formal complaint.
3 2020000237 Here, we find that the responsible Agency officials articulated legitimate, non-discriminatory reasons for the disputed actions as detailed below. On April 7, 2017, Complainant’s condition was first diagnosed when he suffered an on-the-job injury. He attested that he was unable to perform his duties of Delivery Operations more than 4 hours a day; cannot lift more than 30 pounds or 10 pounds continuously more than 4 hours a day; can perform pulling/pushing no more than 50 pounds; and can bend/twist no more than 4 hours a day. In May 2017, Complainant’s Office of Workers’ Compensation Programs (OWCP) claim was accepted for the following conditions: unspecified sprain of left shoulder joint; sprain of ribs; sprain of muscle and tendon of back wall of thorax; and sprain of ligaments of cervical spine. According to the Department of Labor Form CA-17 “Duty Status Report” dated October 24, 2017 indicated that Complainant was able to continuous lift 10 pounds and intermittently 30 pounds 4 hours/day; sit 8 hours/day; stand 8 hours/day; walk 8 hours/day; climb 8 hours/day; kneel 8 hours/day; bending/stooping 4 hours/day; twisting 4 hours/day; pulling/pushing 10 pounds continuous and 30 pounds intermittent 4 hours/day; simply grasping 8 hours/day; fine manipulation 8 hours/day; reaching above shoulder continuous 4 hours/day; driving a vehicle 8 hours/day; operating machinery 8 hours/day; temperature extremes 8 hours/day; high humidity 8 hours/day; chemical solvents, etc. 8 hours/day; fumes/dust 8 hours/day; and noise 8 hours/day. Regarding claim 1, Complainant asserted that on March 12, 2018, he was issued a Notice of Removal. The Manager, Customer Service (Caucasian, white male, unknown national origin) stated that he was the deciding official to issue Complainant the Notice of Removal dated March 12, 2018, for Unsatisfactory Attendance. He stated that prior to issuing Complainant the Notice of Removal, he conducted a Pre-Disciplinary Interview (PDI) with Complainant in the presence of the union steward on February 10 and 21, 2018. The Manager noted when Complainant was asked to explain his absences, he stated that his car was totaled, had doctors’ appointments and for several of the dates “didn’t recall why [he was] absent.” The Manager determined that Complainant violated Sections 511.43 “Employee Responsibilities” and 665.41 “Requirement of Regular Attendance” of the Employee and Labor Relations Manual. The Manager also noted that he considered Complainant’s 14-day suspension in February for unsatisfactory job performance. The record contains a copy of the March 12, 1018 Notice of Removal in which he placed Complainant on notice that he would be removed from Agency employment no sooner than thirty days from the date of his receipt of the letter. The Manager determined that Complainant failed to be regular in attendance on the following dates:
4 2020000237 January 16-18, 2018 20.38 hours of Unscheduled Sick Leave January 19, 2018 8.00 hours of Unscheduled Annual Leave January 25, 2018 8 hours of Unscheduled Emergency Annual Leave January 31, 2018 8 hours of Unscheduled Sick Leave February 2, 2018 8 hours of Unscheduled Emergency Annual Leave February 3, 2018 2 hours of Unscheduled Part-day Leave Without Pay February 3, 2018 6 hours of Unscheduled Emergency Annual Leave February 8, 2018 8 hours of Unscheduled Sick Leave February 12, 2018 4 hours of Unscheduled Emergency Annual Leave February 13-17, 2018 32 hours of Unscheduled Annual Leave February 20, 2018 8 hours of Unscheduled Sick Leave The record reflects that as a result of the grievance, Complainant was reinstated to his City Carrier position without backpay. Regarding claim 2, Complainant alleged that on December 10, 2018, he was put on Emergency Placement in an Off-Duty Status. The Postmaster (Caucasian white male, American) stated that on December 10, 2018, Complainant was placed on Emergency Placement in an Off- Duty Status for threatening the Manager and “us[ing] vulgar language in several conversations.” The Manager explained that during the relevant period Complainant made telephone calls to him which included disparaging comments about him and his family and to his knowledge, this was the reason Complainant was placed on Emergency Placement. With regard to the two claims, beyond his bare assertions, Complainant failed to produce any evidence that the proffered reasons provided by management witnesses for the disputed actions were a pretext masking discriminatory or retaliatory animus. We note again that Complainant provided no arguments on appeal. Finally, to the extent that Complainant also offered these incidents in support of a discriminatory harassment claim, he again has simply provided no evidence to support his claim that his treatment was the result of his race, national origin, sex, color, disability or retaliatory animus. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
5 2020000237 CONCLUSION We 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
6 2020000237 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 20, 2020 Date
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