0120122454
11-07-2012
Arthur T. Lewis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Arthur T. Lewis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120122454
Hearing No. 440-2010-00068X
Agency No. 1J-609-0021-09
DECISION
Complainant filed an appeal with this Commission concerning his complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Vehicle Operations Assistant (VOA) at the Chicago Network Distribution Center (NDC) in Forest Park, Illinois. Complainant filed a formal complaint alleging that he was subjected to discrimination on the bases of color (black) and in reprisal for prior protected EEO activity when:
1. From January 14, 2009 and continuing, Complainant was subjected to discriminatory harassment, regarding but not limited to the following incidents: threats of discipline; lunches and breaks; work assignments; falsification of 3971's; 3971's must go through Plant Manager; and requests for advanced leave were denied.
2. On May 21, 2009, Complainant was issued a Letter of Warning (LOW).
3. On May 28, 2009, Complainant was issued a 7-Day Suspension.
Complainant requested a hearing before an AJ. Following a hearing of Complainant's witnesses only, the AJ issued a decision on April 10, 2010, finding that Complainant had not been discriminated against.
On April 25, 2010, the Agency, fully implemented the AJ's decision and issued a decision finding no discrimination. Thereafter, Complainant filed the instant appeal. On appeal, Complainant argues that he was not afforded the opportunity to "use or call upon my witness or the [A]gency witness to review all the facts and evidence of the witness."
ANALYSIS AND FINDINGS
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complainant's claims of harassment, the Transportation Supervisor (Supervisor) stated that Complainant has not had his lunch and break schedule rearranged. The Supervisor stated that Complainant gets his first break at 20:00 and his lunch at 22:00 and that breaks and lunches depend on the position. The Supervisor claimed that he does not have the authority to arbitrarily change employee lunches, but employees do it out of habit and follow a pattern.
The Supervisor stated that because of the number of complaints from drivers who came into the facility about how they were being treated by the VOAs, a supervisor was kept at each location. The Supervisor claimed that he began to see bad work habits of Complainant and other VOA employees who did not have a supervisor present during the entire shift at both locations. The Supervisor said that the work rules have changed drastically since he has been there. The Supervisor asserted that employees are not allowed to eat at their position. The Supervisor argued that Complainant claimed to be diabetic, but when the Supervisor asked Complainant for documentation so he could get breaks and be approved, Complainant did not bring in any. The Supervisor stated that Complainant had been written up for leaving his position because he was not authorized to leave his position unattended. The Supervisor claimed that when Complainant has said that he was at the bathroom the Supervisor has observed Complainant on the phone. The Supervisor said that he has had to tell Complainant to stop sleeping and reading the paper and had to tell him to turn his music down because he cannot hear a driver at the window. The Supervisor asserted that he applies the same rules for all employees and their scrutiny had increased.
The Supervisor stated that an employee cannot ask a coworker to switch. The Supervisor stated that if there is a problem, the employee must inform the supervisor that they would like to switch, but they cannot arbitrarily say they want a different position.
The Supervisor stated that Complainant has not been harassed. The Supervisor said that he does not meet one-on-one with Complainant unless there is a union steward present. The Supervisor asserted that he didn't talk to Complainant about his claim of harassment. The Supervisor argued that the Agency's anti-harassment policy is posted on the bulletin board in the employee lounge, that all employees are mailed letters yearly, and that they do service talks regarding harassment.
As to Complainant's claims regarding the 3971's (leave request), the Supervisor stated that 3971's must go through the Plant Manager. The Supervisor stated that Complainant had 61 requests for leave since January 2009; 43 were scheduled (approved in advance), 16 were unscheduled (not approved in advance), and 3 were disapproved. The Supervisor asserted that the Tour work schedule dictates the number of employees who have to work on any given day. The Supervisor claimed that the Agency has cut the number of people working which reduces the number of employees that can request off. The Supervisor said that, if there are five or less VOA employees scheduled to work, leave requests will not be granted and since the schedule is posted a week ahead, the employees can see how many people are schedule to work. The Supervisor articulated that if an employee takes off without having his/her leave approved in advance, he/she can receive discipline for unscheduled absences. The Supervisor stated that Complainant would ask for leave, and if his requests were disapproved, Complainant would take off anyway. The Supervisor asserted that Complainant would not call and therefore receive Absent Without Official Leave (AWOL). The Supervisor asserted that, if an employee has more than three unscheduled absences within 90 days they will be given discipline.
The Supervisor stated that Complainant's 3971 requests were not falsified. The Supervisor asserted that Complainant wrote a letter to the Plant Manager when Complainant bid Tour 3 from Tour 1. The Supervisor claimed that Complainant asserted that the Supervisor tried to have him removed and Complainant was concerned with working with the Supervisor. The Supervisor said that the Plant Manager wanted to make sure that Complainant was treated fairly and had all of Complainant's 3971s forwarded to the Plant Manager for approval/disapproval. The Supervisor articulated that it was the Plant Manager's way of addressing Complainant's concerns of being treated fairly.
The Plant Manager stated that he has not denied Complainant's requests for advanced leave. The Plant Manager stated that Complainant was removed from the Agency in 2007, and he won his job back through arbitration because there was a 3971 brought up that Complainant alleged was falsified. The Plant Manager said that this happened before he became the Plant Manager.
The Plant Manager asserted that when Complainant returned to work, Complainant wrote the Plant Manager a letter regarding his concern about his Supervisor. The Supervisor stated that Complainant alleged that the Supervisor changed his 3971s and Complainant wanted corrective action against the Supervisor and did not want to work his tour. The Plant Manager claimed that he told Complainant he would interview everyone and make an assessment. The Plant Manager argued that, after talking with the Manager of Transportation (Manager A) and the Supervisor, he did not believe the Supervisor was "picking on" Complainant. The Plant Manager stated that he told Complainant he did not see any issue, but would monitor his 3971s to ensure there were no problems with them. The Plant Manager asserted that all of Complainant's 3971s went to him. The Plant Manager said that he would review Complainant's leave and finalize his 3971s. The Plant Manager asserted that Complainant agreed to this action.
The Plant Manager stated that, during a meeting in May 2009, he told Complainant he would no longer deal with his 3971s because he saw no merit to his complaint that the Supervisor was falsifying his 3971s. The Plant Manager asserted that he reviewed Complainant's 3971s from February to May 2009, to make sure his leave was handled properly. The Plant Manager stated that the whole agreement was made so that he could make sure no one was falsifying Complainant's 3971s. The Plant Manager claimed that it was the only way to get Complainant to feel like someone was taking him seriously and the only way he could make sure no one was treating Complainant unfairly.
The Plant Manager said that the Supervisor was a difficult supervisor and the Supervisor expected employees to do their jobs. The Plant Manager asserted that Complainant's bottom line was that he wanted the Supervisor off his tour because he didn't want to work with the Supervisor. The Plant Manager claimed that he explained to Complainant that the Supervisor was the supervisor and he did not see anything wrong so he was not going to move him.
The Plant Manager stated that he met with Complainant, and then with the Supervisor and Manager A to understand the situation. The Plant Manager said that he also offered Complainant to be moved out of transportation or to work on a different tour, but Complainant declined.
Regarding Complainant's claim that he was issued a LOW, the Supervisor stated that he was the Attendance Control Supervisor who issued Complainant the LOW for failure to maintain a regular work schedule. The Supervisor asserted that there was not a concurring official. Regarding Complainant's claim that he was issued a 7-Day Suspension for failure to follow instructions, the Supervisor stated that he issued Complainant the 7-Day Suspension that was concurred by Manager A. The Supervisor said that he was working with Complainant in the Inbound/Outbound Building when Complainant was on his position and punched out for lunch while performing his duties. The Supervisor asserted that he observed Complainant punching back in, and asked whether Complainant punched out for lunch. The Supervisor claimed that he told Complainant that he could not punch out for lunch while working, and told Complainant he must punch for lunch when he takes lunch. The Supervisor stated that he instructed Complainant to take lunch and punch lunch at 22:00, which was his scheduled lunch time and Complainant refused. The Supervisor argued that he told Complainant he was deleting his early clock rings from the system, and when Complainant takes his lunch he had to punch out again. The Supervisor stated that Complainant took his lunch at 22:00, but refused to punch for lunch saying he had already punched for lunch, even though the Supervisor told Complainant that he had removed his early clock rings.
The Supervisor said that employees will punch for lunch early so that they can take longer lunches. The Supervisor claimed that, if employees punch out and end for lunch ahead of schedule, they can take longer lunches because they have already punched out. The Supervisor stated that all employees were told not to punch unless they were taking their lunch.
As to the claim of harassment, the AJ found that Complainant had not shown that the incidents he complained of in his complaint were sufficiently severe or pervasive to alter the conditions of Complainant's employment. Furthermore, the AJ found that Complainant failed to show that any of the harassing incidents were motivated by color or reprisal.
The Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Additionally, the Commission finds that Complainant has failed to show by a preponderance of the evidence that he was subjected to discrimination on the bases of color or reprisal.
CONCLUSION
The Agency's decision 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
November 7, 2012
__________________
Date
2
0120122454
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122454