0120082640
12-17-2008
James Demetriades, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James Demetriades,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082640
Agency No. 1H-336-0056-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 28, 2008 final decision 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Mail Processing
Clerk, PS-05, at the agency's Tampa Processing and Distribution Center
in Tampa, Florida.
On August 14, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to harassment and a
hostile work environment on the bases of race (Greek1), national origin
(Greek), sex (male), religion (Greek Orthodox), color (White), disability
(depression), age (55), and in reprisal for prior EEO activity when:
(1) on June 26, 2007, he was not allowed to work in the registry;
(2) on July 6, 2007, he was assigned to work outside of his area; and
(3) on July 12, 2007, he was forced to take a lunch break before being
released on Family Medical Leave Act (FMLA) and forced to page management
before leaving.2
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing but subsequently withdrew that request,
and requested the agency to issue a final decision.
In its April 28, 2008 final decision, the agency found no discrimination.
The agency found that complainant did not establish a prima facie case
of race, national origin, sex, religion, color, disability, age, and
reprisal discrimination.3 The agency further found even assuming, for
the sake of argument only, complainant established a prima facie case,
management articulated legitimate, nondiscriminatory reasons for its
actions, which complainant did not show were a pretext. With respect
to complainant's harassment claim, the agency found that complainant
did not prove that he was subjected to harassment sufficiently severe
or pervasive so as to render his work environment hostile.
Regarding claim (1), the Registry Section supervisor (RS) stated that "on
June 26, 2007 I did in fact tell [Complainant] that I did not need him on
the platform receiving SCF registry mail. I had enough employees to cover
all areas of the operation." RS further stated that complainant does
not hold a relief bid in the registry section and that he "had a modified
light duty job offer that stated he may work registry cage duties on an
as needed basis. His primary operation is 030, pay location 341."
With respect to complainant's harassment allegation, RS stated that he did
not subject complainant to harassment. RS stated that after complainant
informed him that he felt that he was subjected to harassment because
he could not work in registry on June 26, 2007, he tried to explain to
complainant that "I had enough people to perform all the duties of the
registry cage and I did not need him every day. I also tried to explain
that he did not hold a bid in the registry cage."
Regarding claim (2), the supervisor for the North Dock and Registry
Cage (ND) stated that on July 6, 2007, complainant "was asked if he
would be willing to work Priority Mail on the south dock, to which he
responded yes." Furthermore, ND stated that he did not discriminate
against complainant based on his race, national origin, sex, religion,
color, disability, age or prior protected activity.
Regarding claim (3), the Acting Supervisor Distribution Operations (AS)
stated that complainant submitted a PS Form 3971 requesting FMLA sick
leave "for 01 hour and '(no lunch)' without a lunch." AS stated that he
asked complainant what time he clocked in and complainant "stated 13:50.
I asked him why he didn't take a lunch today. He said he didn't[,] he
was busy on the dock." AS stated that he asked complainant if he had
informed his supervisor that he had not taken his required lunch break,
and complainant responded that he had not. AS stated that he then asked
complainant who his supervisor was and complainant stated that he did
not know but had told the Manager, Distribution Operations (MDO) about
his lunch. AS stated that according to complainant, MDO told him that
he did not need to take lunch. AS stated that he questioned MDO about
complainant's lunch, and MDO informed him that he did not have any such
conversation with complainant.
AS stated that after returning to his 030 desk, he informed complainant
that "he is required to take a lunch during work hours and take breaks
as required. If a break relief does not show up when one is required or
the employee is nearing his sixth work hour [sic]. I told the employee
that I have approved the 3971 for FMLA sick at 2031." AS stated that
complainant demanded to see MDO and a union steward. AS stated that
he tried to make arrangements for complainant to meet MDO and union
steward but they were in a meeting. AS advised complainant to see MDO
the next day, and gave him the approved PS Form 3971 to go home early.
AS stated that at that point, complainant "stated to me that this
is a 'crock of shit' and that he 'would not accept it from anyone.'
[Complainant] then took the 3971, ripped it in half and threw it directly
at me, he was approximately 4 feet away at the time." AS stated that
complainant "came toward me and I was in a corner with no way out and
he reached in front of me into the 1075 card and retrieved the ripped
3971 and stated, 'I'm want this and I'm going to keep it for evidence.'"
AS stated that complainant demanded a union steward and left for lunch.
AS stated that when complainant returned to the 030 unit, complainant
created a disturbance demanding a union steward, who was quickly provided
to him. AS stated that complainant provided him with another PS Form
3971 requesting FMLA leave which he approved for complainant "to leave
at 2100."
ND denied instructing complainant to page him or Supervisor Distribution
Operations before leaving the facility. ND further stated that on several
occasions, complainant was informed "that pursuant to the Office Rules of
the Tampa P&DC (Rule # 14), dated June 18, 2004 and updated June 28, 2007,
that 'Employees may not leave work assignments without permission.' Simply
put, he was informed that he needed to see his supervisor if he needed
to leave work before his regularly scheduled end of tour." Furthermore,
ND stated that he did not discriminate against complainant based on his
race, national origin, sex, religion, color, disability, age or prior
protected activity.
Disparate Treatment
A claim of disparate treatment is examined under the three-party 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).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
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. 01970727 (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 incidents complained of, even if
taken as true, do not rise to the level of a hostile work environment.
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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 17, 2008
Date
1 We note that as the terms are defined by the Commission, "Greek"
connotes a national origin rather than a race.
2 The record reflects that in its final decision, the agency determined
that because complainant raised the issue of a breach of a settlement
agreement, this claim was referred to the agency official responsible
for the processing of such breach claims.
3 The Commission presumes, for purpose of analysis only and without so
finding, that complainant is an individual with a disability.
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0120082640
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082640