0120121884
09-07-2012
Fabian D. Adams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Fabian D. Adams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121884
Hearing No. 420-2011-00166X
Agency No. 4H350013510
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 14, 2012 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Agency's Mobile-Loop Station in Mobile, Alabama. On December 1, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (Knees) and reprisal for prior protected EEO activity under the Rehabilitation Act when: (1) On August 30, 2010, he was forced to case Route 626 after he told the Supervisor that his knees were hurting; (2) On November 4, 2010, he was issued a Notice of 7-Day Suspension; (3) On an unspecified date, he was issued a Letter of Warning (LOW); (4) On January 11,2011, he was issued a Notice of 14-Day No-Time-Off Suspension; 5) On or about March 17, 2011, he was issued a Notice of 7-Day Suspension; (6) On or about March 17, 2011, he was issued a Notice of 14-Day Suspension; and, (7) On or about April 8, 2011, he was forced to work overtime outside his medical restrictions.1
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing within the time frame provided in 29 C.F.R. � 1614.108(f). However, on December 1, 2011, the AJ dismissed Complainant's hearing request and remanded the complaint to the Agency for the issuance of a final decision on the record. The AJ noted that Complainant waived his right to a hearing, by virtue of not having complied with the Administrative Judge's Acknowledgment and Order dated July 15, 2011.
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant's supervisors stated that on August 30, 2010, Complainant had undertime on his route, therefore he was told to case Route 626 to capture that time. The Supervisor of Customer Services (SCS) added that Complainant had been complaining about his knees every since he has been the supervisor at the Loop Station; and she did not think that day was any different from any other day. Further, Complainant had not submitted any medical documentation to confirm that he had any limitations.
Concerning the November 4th suspension notice, the SCS averred that Complainant did not serve any time due to the issuance of the suspension, as it was "a No-Time-Off." She explained that Complainant was not on the Overtime Desired List at that time; however, he went over (time) on his route on October 12 - 15, 2010; October 19 -20, 2010; and October 25, 2010. Complainant was given 30 minutes of auxiliary on October 12, 2010, "plus he curtailed two feet of flats." Additionally, the SCS noted that on October 25, 2010, Complainant was given 30 minutes of auxiliary assistance. She averred that Complainant's medical documentation indicated that he could work eight hours a day, and that "Complainant has a problem with management capturing his undertime." The Manager of Customer Services (MCS) stated that she concurred with the SCS's decision to issue Complainant the Seven-Day, No-Time-Off Suspension, issued November 4, 2010, as it was progressive discipline. She noted that Complainant worked unauthorized overtime. The SCS and the MCS both affirmed that they had issued Complainant LOW's. The MCS stated that she issued a LOW to Complainant on September 16, 2010 for extending street time. She explained that she observed Complainant at 501 Bel Air Boulevard from 2:35 PM to 2:55 PM. Further, she noted that the SCS issued Complainant a LOW on October 22, 2010, for Failure to Follow Instructions for not scanning the Managed Service Point (MSP). Regarding the January 11th suspension, the SCS stated that Complainant was issued a Notice of Fourteen-Day No-Time-Off Suspension because he failed to follow instructions.
With respect to the suspensions purportedly issued in claims 5 and 6, the Agency explained that these claims are not supported by the evidence of record. Both the SCS and MCS stated that Complainant was not issued discipline on or about March 17, 2001, nor did the investigation reveal any discipline around the date in question. In addition, Complainant failed to provide any evidence to support these claims.
Concerning Complainant's claim that he was forced to work overtime outside his restrictions, the SCS stated that Complainant is "never forced to work outside his limitations." She explained that on April 8, 2011, Complainant's route (Route 621) was under approximately 30 minutes. Therefore, he was given 30 minutes of relief to capture his undertime. She noted that Complainant was given time on the street only. A copy of Complainant's PS Form 3996, Carrier Auxiliary Control work hour/workload report for the day in question, indicated that Complainant went over by 30 minutes on Route 621 alone. However, the 3996 for the relief he was given took 33 minutes to complete. The MCS stated that Complainant has never been forced to work overtime. She added that Complainant "was given relief only to absorb undertime for that day, based on the volume of mail."
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 110, Chapter 9, � VI.A. (November 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").
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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant mainly challenges the credibility of Agency witnesses in this matter. However, beyond his bare assertions, and even assuming Complainant is a person with a disability, Complainant has not produced evidence to show that the Agency's explanations are a pretext for discrimination.
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 decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
September 7, 2012
__________________
Date
1 The record reflects that Complainant had alleged one additional claim. Specifically, on or about June 1, 2010, he was given a Letter of Warning and a Seven-Day Suspension. On April 25, 2011, the Agency dismissed this claim, as untimely brought to the attention of an EEO Counselor, in accordance with 29 C.F.R. 1614.107(a)(2). It was noted that the Complainant did not request EEO counseling until April 4, 2011, approximately ten months after the alleged
discrimination. We affirm the Agency's dismissal.
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0120121884
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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