0120073158
10-03-2007
Joseph P. Murphy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph P. Murphy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073158
Agency No. 4A117003507
DECISION
On July 3, 2007, complainant filed an appeal from the agency's June 25,
2007, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Letter Carrier at the agency's Garden City Post Office facility
in Garden City, New York. On February 15, 2007, complainant filed an
EEO complaint alleging that he was discriminated against on the basis
of reprisal for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. On December 7, 2006 complainant was forced to work overtime; and
2. On December 7, 8, and 13, 2006 complainant was harassed and threatened
by a management officials.
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). In accordance
with complainant's request, the agency issued a final decision (FAD)
pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant failed
to prove that he was subjected to discrimination as alleged. In its FAD,
the agency found that complainant failed to establish a prima facie case
of reprisal with regard to the overtime issue. The agency further found
that, assuming arguendo that complainant established a prima facie case,
the agency articulated a legitimate, nondiscriminatory reason for its
action, namely by denying that complainant was forced to work overtime.
The agency further found that complainant failed to establish that
the agency's articulated reason was pretextual. With regard to the
harassment issue, the agency found that the actions complained of were
not sufficiently severe as to constitute a hostile work environment, nor
did complainant show that they were related to his prior EEO activity.
On appeal, complainant contends that the agency failed to address all
the issues he raised during the course of his complaint.
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 claim 1, 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The prima facie inquiry may be dispensed with, however, since the agency
has articulated legitimate and nondiscriminatory reasons for its action.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713 17 (1983). Specifically, two supervisors (RMOs 1 and
2) not only denied that complainant was forced to work overtime but
maintained that the overtime taken by complainant on the day in question
was unauthorized. See Report of Investigation (ROI), Affidavit B, pp. 1
& 2; and Affidavit C, p. 3. The burden thus returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993). While complainant disputes the
version of events as told by RMOs 1 & 2, see ROI, Affidavit A, he has not
met his burden of establishing, by a preponderance of the evidence, that
the agency's articulated reason for its action is a pretext for reprisal.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Following a careful review of the evidence, we find that complainant
has not met his burden of establishing that he was harassed based
on reprisal. Specifically, complainant has not shown that he was
subjected to unwelcome verbal or physical conduct either involving, or
based on, his prior EEO activity, nor has he shown that the harassment
was so severe and/or pervasive as to create an intimidating, hostile,
or offensive work environment.
Finally, we note that complainant contends on appeal that the agency
did not address all of his claims. We note, however, that on March 1,
2007, the agency sent complainant a notice of the issues that would be
accepted for investigation. The notice listed the two issues addressed
in the FAD and herein, and notified complainant that if he disagreed
with the accepted definition of the issues, he should notify the EEO
office within seven days. The record does not show, and complainant
makes no claim, that he ever responded within the seven-day period to
have the issues changed.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that complainant has failed to meet his burden of establishing, by a
preponderance of the evidence, that discrimination occurred. Accordingly,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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 A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2007
__________________
Date
2
0120073158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073158