0120113239
10-04-2012
Robert S. Sturgeon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Robert S. Sturgeon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120113239
Hearing Nos. 490-2008-00054X & 490-2009-00037X
Agency Nos. 4H-370-0105-07 & 4H-370-0124-08
DECISION
Complainant filed an appeal from the Agency's May 6, 2011 Final Decision concerning his equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a Rural Letter Carrier at the Agency's Sevierville Post Office facility in Sevierville, Tennessee. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (52), sex (male), disability (physical), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973, when:
Agency Case Number 4H-370-0105-07
1. Complainant's requests for 8 hours of leave without pay (LWOP) for April 14, 2007, April 18, 2007, April 18, 2007, April 25, 2007, May 16, 2007, and May 23, 2007, were disapproved;
2. On May 3, 2007, Complainant received a Letter of Warning charging him with Failure to Maintain a Regular Work Schedule;
3. On or about May 17, 2007, and subsequent dates, Complainant was scheduled to report for a Fitness-For-Duty examination;
4. On May 24, 2007, Complainant was put in an unpaid leave status;
5. On June 8, 2007, Complainant received a Letter of Warning for Failure to follow Instructions; and
6. On an unspecified date(s), management refused to accept Complainant's doctors' orders; tried to solicit statements of complaints from other employees; and sent false statements to the fitness-for-duty doctor.
Complainant alleged discrimination on the basis of retaliation in that he was subjected to a hostile work environment when:
7. On June 27, 2007, Complainant was scheduled for a psychological evaluation; and
8. On August 4, 2007, Complainant received a notice that he was being separated from the Postal Service.
Complainant filed a second complaint alleging discrimination based on disability and retaliation
when:
Agency Case Number 4H-370-0124-08
9. Complainant was terminated effective February 2, 2008.
At the conclusion of the investigation, the Agency provided Complainant 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. However, by order dated Marcy 29, 2011, the AJ granted Complainant's request to withdraw his hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its Decision regarding Agency case number 4H-370-0124-08, the Agency found that Complainant failed to contact an EEO Counselor within the 45-day time limit. The Agency found that Complainant received three notices in his post office box when the Agency attempted to deliver a certified letter to him in December 2007. That letter, the Agency noted, contained a Notice of Removal informing him that he was being separated from service. Complainant never claimed the letter, the Agency found, and so the Agency sent Complainant the same Notice by regular first class mail. Complainant was observed, the Agency found, receiving the unopened first class letter and also was observed placing it back into his post office box, and pushing the letter through the box so that it fell on the workroom floor behind the post office boxes. The Agency found this evidence sufficient to show that had Complainant been receiving his mail in the normal course, he would have known that he was being removed from service.
The Agency considered Complainant's claim that he did not know he had been terminated from his employment until May 29, 2008, when he learned that his insurance had been cancelled because he was separated from the Agency. Complainant, the Agency observed, contacted an EEO Counselor on June 19, 2008, regarding his removal on February 2, 2008. The Agency found that Complainant failed to contact an EEO Counselor within 45 days of when he should have known that his employment was terminated. The Agency found Complainant's avoidance of the Notice sent to him in December 2007, was insufficient to toll the time limits within which to contact an EEO Counselor. The Agency therefore dismissed this complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
The Agency alternatively considered the merits of Agency case number 4H-370-0124-08 and found no discrimination. The Agency analyzed this termination complaint together with Agency case number 4H-370-0105-07.
Regarding Complainant's claims based upon age and sex (claims (1) - (8)), the Agency found that Complainant failed to identify other similarly situated employees, not in his protected classes, who were treated better than he was treated. For example, Complainant identified two employees, E1 and E2 who were younger than himself that he claims were permitted to use LWOP when he was not. The Agency found that E1 and E2 were both Rural Carrier Associates (RCA) and not full time career employees. The Agency found that they are not similarly situated to Complainant for purposes of analysis under Title VII or the ADEA. Two other employees, E3 and E4, were also male, and over 50 years of age, thus both belonged to the same protected classes as Complainant. The Agency also found that Complainant's supervisors articulated legitimate, non-discriminatory reasons for their actions that Complainant failed to show were pretext for discrimination.
The Agency found that for the claims based on reprisal, Complainant failed to establish a prima facie case of discrimination regarding the claims raised in Agency Case Number 4H-370-0105-07. The Agency considered Complainant's claim that he told his supervisor, S1, that he intended to contact EEO on April 17, 2007. However, the Agency found that Complainant's first contact with EEO was actually on June 19, 2007, and that he did not have any EEO activity prior to that date and failed to establish a prima facie case of reprisal discrimination regarding the claims in Agency case number 4H-370-0105-07.
The Agency found that Complainant established a prima facie case of reprisal with respect to his removal on February 2, 2008 (4H-370-0124-08). Complainant engaged in EEO activity of which his supervisors were aware (Agency case number 4H-370-0105-07), he was subjected to an adverse action (removal), and this activity followed within months of EEO activity pertaining to Complainant's prior complaint. However, the Agency found that Complainant failed to comply with the terms of a settlement agreement reached through the Agency's collective bargaining agreement that required, in part, that he cooperate in a psychological fitness for duty examination which Complainant admits, he failed to do. The Agency found that S2 and S3 (Manager, Customer Service and the Postmaster) denied that Complainant's prior activity had any influence on their decision to remove Complainant from his position. Accordingly, the Agency found that Complainant did not show that reprisal motivated the Agency's actions described in Complainant's second complaint (4H-370-0124-08).
With respect to both of Complainant's complaints insofar as they are based on disability, the Agency found that Complainant is an individual with a disability (hypertension), but that his supervisors did not regard him as such. Further, the Agency found that until Complainant presented documentation from his physician that he could die on the workroom floor due to his condition, Complainant did not have a record of a disability with the Agency. The Agency found that Complainant did not, however, identify other employees with disabilities outside of his protected groups, who received preferential treatment.
Again, the Agency found that the individuals Complainant identified were either not in the same job, were not career employees, or were also male and over 40 years of age and within five years of Complainant's age. The Agency further found that Complainant did not establish that he required an accommodation to perform the essential functions of his position because he failed to cooperate in the physical and psychological fitness for duty examinations to which he was directed by the Agency. Accordingly, the Agency found that Complainant failed to establish that he was an otherwise qualified individual with a disability who was able to perform the essential functions of his position with or without an accommodation.
The Agency found that Complainant failed to establish a prima facie case of harassment because Complainant failed to present any evidence that the acts he describes as harassment were anything more than normal, ordinary workplace interactions. The Agency found that none of the actions Complainant described in his complaints either alone or taken together created a hostile work environment. The Agency further found that Complainant failed to present any evidence showing any connection between the Agency actions and Complainant's protected categories. Moreover, the Agency found that each of the actions Complainant deemed to be harassment were personnel actions for which the Agency had provided adequate support. Specifically, the Agency noted that Complainant was denied leave when he refused to provide medical documentation or failed to present adequate medical documentation. Complainant, the Agency further found, received a Letter of Warning for failing to maintain regular attendance, was sent for a fitness for duty (FFD) examination, and later placed on emergency off-duty status when he stated to S2 that his current condition could result in his death at any time. The Agency found that S2, to ensure that Complainant was not a direct threat to himself or others, took the normal step to place Complainant off-duty, and required that Complainant cooperate in a FFD examination, including a psychological examination indicated by the examining physician. The Agency found that for his failure to follow instructions, his absences, and failure to show that he was able to meet the requirements of his position, Complainant was ultimately removed. The Agency concluded that all of the actions Complainant labels as harassment were ordinary personnel actions that occur based on the circumstances Complainant presented to the Agency. The Agency found that Complainant did not show that he was subjected to harassment.
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In analyzing a disparate treatment claim under the Rehabilitation Act, where an agency denies that its decisions were motivated by complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for disability discrimination. Id.
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. Soc. Sec. 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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 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. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
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 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 alleged that he was subjected to a hostile work environment. To establish a prima facie case of hostile work environment, he must show the existence of four elements: (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. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
As a preliminary matter, we find the Agency improperly dismissed Agency case number 4H-370-0124-08 pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. We find that in the months preceding his removal, the record shows that Complainant received a variety of correspondence from the Agency including disciplinary notices and notices regarding the scheduling of FFD examinations. We note that Complainant was observed placing mail from the Agency back in his post office box, but nothing indicating the contents of that unopened envelope or that Complainant either knew or should have known the contents of that mail. We do not find that Complainant should reasonably have suspected that the mail he received from the Agency was a notice of removal and that he should have known it was not some other notice or correspondence from the Agency. We therefore find that Complainant's EEO contact on June 19, 2008, was not timely, as there is no reason he should have reasonably suspected discrimination until May 2008, when he discovered he was terminated. We therefore consider the Agency's alternate analysis of this complaint on the merits.
We find the Agency's Final Decision regarding both complaints on their respective merits is supported by the record. We concur with the Agency that Complainant did not identify any similarly situated individuals, not in his protected groups, who were treated better than he was treated. We find that Complainant did not show that more likely than not, he was subjected to the actions he describes in Agency case 4H-370-0105-07 because of his age, sex, disability, or in reprisal for EEO activity. Nor do we find that Complainant proved he was removed because of his disability or in reprisal as alleged in 4H-370-0124-08.
We find that Complainant did not show that the Agency's reasons for its actions were a pretext or motivated by any of his protected bases. The evidence shows that the Agency issued discipline to Complainant, which ultimately led to his removal, when, among other matters, Complainant failed to maintain regular attendance, then failed to follow instructions regarding the FFD examinations that were prompted by his absences and the medical documentation he did present.
We assume, without so finding, that Complainant is an individual with a disability. We concur with the Agency that Complainant failed to show that he was treated differently than other employees because of his disability under similar circumstances. We find no evidence that other Rural letter carriers were not also issued discipline for failure to maintain a regular schedule when they used excessive unscheduled leave or failed to present medical documentation. There is no indication that Complainant ever requested a reasonable accommodation. Even if Complainant did request a reasonable accommodation, the Agency cannot be expected to provide any accommodation when Complainant refuses to provide the necessary medical information to determine the proper accommodation.
Considering Complainant's overall claim of harassment, we find no evidence to show that any of the alleged incidents were motivated by discrimination or in reprisal for protected activity (assuming for the sake of argument that Complainant established a prima facie case of reprisal).
We find the Agency properly found that Complainant did not show that discrimination on any basis motivated the Agency's decision to remove Complainant from service. We find that Complainant did not identify any employees who, after presenting medical documentation and statements suggesting they had medical conditions from which they could die at any time, who were not also instructed to undergo an FFD examination, either physical or psychological, and who, failing to do so, were not also removed from service. Ultimately, Complainant was removed for failing to follow instructions and for his attendance issues.
CONCLUSION
We therefore AFFIRM the Agency's Final Decision finding no discrimination.
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 4, 2012
__________________
Date
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0120113239
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113239