0120102860
04-25-2012
Roberto Ifill, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Roberto Ifill,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120102860
Hearing No. 570-2008-00409X
Agency No. 1K-221-0023-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the May 29, 2010 final Agency decision (FAD) 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Processing and Distribution Center in Merrifield, Virginia. On October 31, 2007, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of race (Hispanic), national origin (Panama), sex (male), color (Black), and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, on unspecified dates he was prevented from working in his bid section, issued a letter of warning, given undesirable reassignments, and denied overtime.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 21, 2010, the AJ issued an Order dismissing the hearing request on the grounds that Complainant did not comply with the AJ's order to respond to the Agency's discovery requests. The AJ remanded the complaint to the Agency for a final decision.
In its May 19, 2010 FAD, the Agency initially determined that Complainant had not established a prima facie case of discrimination or hostile work environment. The Agency noted that Complainant failed to provide adequate responses to specific questions from the EEO investigator or to provide any clarifying information in his affidavit to support his claims. Specifically, Complainant responded to the investigator's questions by expressing his objection to the questions and the requested information. Nonetheless, the Agency assumed arguendo that Complainant had established a prima facie case of discrimination and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions.
As to the letter of warning, the Agency determined it was issued on November 6, 2007, after Complainant failed to follow instructions. The record indicated that Complainant failed to attend a mandatory service talk despite being previously ordered to attend. Regarding Complainant's claims regarding being denied overtime, the Agency determined that time and attendance records indicated that during the time period of March 2007 through December 2007, Complainant worked nonscheduled day overtime on 18 occasions. Records further revealed that Complainant was unavailable for overtime due to his use of annual or sick leave on 15 other occasions.
Regarding Complainant's claims related to work assignments and scheduling, Complainant again objected to the investigator's questions and only provided vague and ambiguous allegations. Complainant alleged that he was assigned to an undesirable reassignment, that he did not receive notices of scheduled days to work and was prevented from working, that his co-workers have problems with attendance, production, drunkenness, teamwork, goals, breaks, and willfully delay mail to obtain overtime. He further stated that management officials have been attempting to discharge him under false pretenses since 2001. Management officials asserted that they had no knowledge of Complainant's harassment allegations and he never reported any of the alleged behavior. Further, the Manager of Distribution Operations (M1) affirmed that weekly schedules were posted a week prior to the beginning of the workweek in the same central location for each tour.
The Agency concluded that Complainant failed to show that the alleged incidents were sufficiently severe or pervasive to rise to the level of a hostile work environment. Further, the Agency found that Complainant had not shown that any of the Agency's alleged actions were based on his protected classes. As a result, the Agency held that Complainant had not been discriminated against or subjected to a hostile work environment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant seeks to amend his complaint to include additional allegations of discriminatory and retaliatory treatment. Further, Complainant contends that he continues to be subjected to discriminatory harassment. Complainant argues that the Agency has not given any legitimate reasons for the harassment. Accordingly, Complainant requests that the Commission reverse the FAD.
ANALYSIS AND FINDINGS
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) he belongs to 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 his statutorily protected class; (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; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on his statutorily protected classes, management continuously subjected him to a hostile work environment. Complainant alleged numerous, but vague incidents of what he believed to be discriminatory and retaliatory harassment, but refused to provide the investigator more specific information to support his claims. However, based on the record before us, the Commission cannot find that Complainant was subjected to conduct sufficiently severe or pervasive to rise to the level of a hostile work environment. In addition, the Commission finds that Complainant failed to show that these alleged incidents were unlawfully motivated by discriminatory or retaliatory animus. Specifically, as to the letter of warning, the record reveals that it was issued because Complainant failed to attend a mandatory service talk despite prior instructions to attend. Additionally, the record indicates that Complainant alleged that he requested sick leave to care for his mother in April 2007, but the Agency charged him annual leave instead. The record reveals, however, that Complainant was granted sick leave for dependent care from April 16, 2007 through April 20, 2007. ROI, at Ex. 6.
Regarding Complainant's claims regarding not receiving notice of his work schedule and unfavorable work assignments, M1 affirmed that employees' weekly schedules are posted the week prior to the beginning of the workweek in the exact same central location designated for each tour. ROI, at 202. He added that employees do not usually receive individual copies of the schedule. Id. Complainant's supervisor confirmed that she had no knowledge of Complainant receiving undesirable reassignments or work assignments. S1 affirmed that she did not know of any instances where Complainant was denied working in his bid section as she worked in the same section as Complainant and observed Complainant work in the same area and on the same machine daily during the period in question. ROI, at 214. Finally, with respect to Complainant's claim that he was denied overtime, the record establishes that from March 2007 through December 2007, Complainant requested and was granted overtime multiple times. ROI, Ex. 5.
Thus, the Commission concludes that Complainant has not shown that he was subjected to a hostile work environment. While Complainant has cited various incidents where Agency management took actions that seemed adverse or disruptive to him, the Commission finds that Complainant failed to show that these incidents were a result of unlawful discrimination or retaliation. Further, to the extent Complainant is alleging disparate treatment with respect to his claims, he has not shown that the Agency's reasons for its actions as articulated above were a pretext for discrimination or reprisal. As a result, the Commission finds that Complainant has not established that the Agency's actions were in violation of Title VII.1
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted 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 (Nov. 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
April 25, 2012
Date
1 The Commission notes that Complainant has raised new allegations of discrimination and reprisal on appeal. Complainant is advised to initiate contact with an EEO Counselor if he wishes to pursue these additional allegations. The Commission will not accept new claims raised for the first time on appeal.
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0120102860
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013