0120142031
10-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142031
Agency No. 4C-450-0063-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 24, 2014 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's South Columbus Station facility in Columbus, Ohio.
On April 3, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the basis of reprisal for prior EEO activity when:
1. on February 6, 2013, he was issued a Letter of Warning;
2. on February 20, 2013, he was issued a 7-Day Suspension;
3. on March 9, 2013, he was singled out to start work at 8:15 a.m.;
4. for an absence between March 18 and March 23, 2013, he was charged Leave Without Pay (LWOP) and he was refused a pay advance;
5. on an unspecified date, he was given a letter instructing him to call the office by 3:00 p.m. if he could not make the return time;
6. on an unspecified date, he was issued a 7-Day Suspension;
7. from January 6, 2013 to present, he had been subjected to an excessive amount of street observations;
8. on April 4, 2013, his supervisor pushed Complainant's hand away while he was pointing at mail on a rack;
9. on April 13, 2013, he was issued a 14-Day Suspension;
10. for absences on May 17 and 18, 2013, he was charged LWOP and subsequently refused a pay advance;
11. on June 28, 2013, his manager hit him in the back with a pen, grabbed mail off his case and threw it in the rack;
12. on an unspecified date, he was charged LWOP;
13. on June 29, 2013, his request to attend a doctor's appointment was denied and he was scheduled as LWOP;
14. on an unspecified date, he was issued a 7-Day Suspension;
15. on an unspecified date, he was issued a 14-Day Suspension;
16. on October 1, 2013, his request for additional time to carry his route was denied;
17. on an unspecified date to be specified he was issued a 14-Day Suspension; and
18. on an unspecified date, he was charged sick leave for his Worker's Compensation injury.1
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On April 24, 2014, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming for the sake of argument only, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Manager, Customer Services stated that during the relevant period she was Complainant's supervisor. The supervisor stated that in regard to claim 1, she issued Complainant a Letter of Warning on February 6, 2013 "for failure to be regular in attendance, failing to scan two MSP scan points, and he also failed to complete his route in the 10 hour required time on a specific date."2
Regarding claim 2, the supervisor was the concurring official concerning Complainant's 7-Day Suspension which was later reduced to a Letter of Warning. The supervisor stated that Complainant did not identify the assignment he was performing in the time keeping system "which had to do with him not moving to the street and that led to inaccurate timekeeping...he had this issue many times and was spoken to about it so when it occurred again he was written him up. On that same day he also failed to properly perform a required MSP scan."
Regarding claim 3, the supervisor stated that during the relevant period, she moved the carriers' start times to 8:00 a.m. instead of 7:30 a.m. "because we were not getting the volume of mail and were getting more parcels." The supervisor stated that she also moved Complainant's and two other carriers' start time to 8:15 a.m. "because [Complainant's] route, along with two others, had a lighter mail volume than the other routes."
Regarding claim 4, the supervisor stated at that time, Complainant was notified that if he called in for an unscheduled leave, he was required to provide documentation. The supervisor further stated that between March 18 and March 23, 2013, Complainant called in for an unscheduled absence "on a Wednesday and a Thursday, it was his weekend off, and then he was on annual the next week. I didn't receive documentation to support his absence so he was put in Leave Without Pay."
Regarding claim 5, the supervisor stated that Complainant was instructed to call the office by 3:00 p.m. if he could not make his return time "so the supervisor can make arrangements to have all of the mail delivered on time and to provide assistance if necessary, or to authorize overtime if necessary."
Regarding claim 6, the supervisor stated that she was the concurring official for Complainant's 7-Day Suspension which was later reduced to a Letter of Warning. The supervisor stated that the reason for the 7-Day Suspension for failure to follow instructions and unsatisfactory performance.
Regarding claim 7, the supervisor stated that in general supervisors have to conduct street observations on a daily basis and "especially if you have vital employee who can never make it back on time. Employees with this problem are observed more often to determine the problem and corrective action. This is true for other employees with performance issues and not just the Complainant."
Regarding claim 8, the supervisor denied pushing Complainant's hand away while he was pointing at mail on a rack. Specifically, the supervisor stated "I did not push [Complainant's] hand away. I was pointing at the mail in the rack telling him to curtail mail so he could get out on time and get the mail delivered in a timely manner. He put his hand in the way."
Regarding claim 9, the supervisor stated that she concurred with Complainant's 14-Day Suspension due to a performance related issue.
Regarding claim 10, the supervisor stated that Complainant was charged LWOP on May 17 and 18, 2013 because "he did not provide his documentation before the end of the pay period, as required and was charged LWOP." The supervisor further stated "I do not process pay advances for employees when the lack of pay was not caused by management's error. [Complainant] was charged LWOP and not paid for the dates because of his own inability to provide documentation before the end of the pay period."
Regarding claim 11, the supervisor stated that while she does not recall the June 28, 2013 incident, "it is possible I touched [Complainant] in the back with a pen in my hand, I certainly did not hit him as alleged. The Complainant has a habit of not working efficiently and needs to be reminded that he has to get out on the road in a timely manner so he can return on time."
Regarding claims 12 and 13, the supervisor stated that on June 29, 2013, Complainant was charged LWOP because he did not provide documentation for his absence on that date. The supervisor further stated "apparently when [Complainant] did provide the documentation, the supervisor forgot to change the LWOP to paid leave. I believe he was subsequently paid for the date."
Regarding claim 14, the supervisor stated that on June 21 and 24, 2013, Complainant requested sick leave for August 29, 2013 but it was denied "because there were excessive vacant routes on that date and his services were required. He was advised to reschedule his appointment for a scheduled day off but on July 29, 2013 he called in sick and failed to report as scheduled. Based on his failure to come to work, he was issued the suspension for Failure to Follow Instructions/Failure to Report as Scheduled."
Regarding claim 15, the supervisor stated that on August 9, 2013, Complainant was issued a 14-Day Suspension for failure to follow safety procedures when he stepped in a hole on his route. The supervisor stated that she conducted a Pre-Disciplinary Interview with Complainant to find out "how he stepped in hole and why accident wasn't reported immediately."
Regarding claim 16, the supervisor stated that while she does not recall the October 1, 2013 incident, Complainant "often requests unwarranted additional time to carry his route. As is generally the case, after reviewing his workload on any given date, he was told the [request] for additional time would be denied because there was no workload justification for his request."
Regarding claim 17, the supervisor stated that Complainant was issued the 14-Day Suspension dated October 7, 2013 for failure to follow instructions. Specifically, the supervisor stated that Complainant failed to complete his route delivery on October 1, 2013, and "failed to notify management of his inability to do so. He had been instructed to complete his route in eight hours but worked a total of 11.01 hours including penalty overtime."
Regarding claim 18, the supervisor stated that a supervisor made a mistake when making TACS [Time and Attendance Collection System] entries for Complainant after he suffered an on-the-job injury and Complainant was charged sick leave instead of compensation. The supervisor further stated "when it was brought to my attention, I attempted to correct the error in TACS AdjustPay but it did not get corrected so I had to wait until the next day pay period to re-submit the correction. I believe it has subsequently been corrected. I informed the Complainant that I had a problem with getting it corrected but that I would correct it."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements 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
October 8, 2014
__________________
Date
1 The record reflects that claims 8 - 18 were later amended to the instant formal complaint.
2 MSP is an acronym for Managed Service Points.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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