Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionSep 11, 20140120123253 (E.E.O.C. Sep. 11, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency. Appeal No. 0120123253 Agency No. 1K-209-0015-11 DECISION On August 18, 2012, Complainant filed an appeal from the Agency’s July 19, 2012, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as an Electronics Technician at the Agency’s Processing and Distribution center in Gaithersburg, Maryland. He contacted an EEO counselor on August 10, 2011, and filed an EEO complaint on November 23, 2011. Investigative Report (IR) 26, 38. Complainant alleged that the Agency discriminated against him because of his race (African- American), color (Black), and disability when: 1. On December 20, 2008, he was bypassed for an overtime opportunity; 2. On unspecified dates throughout 2009, he was bypassed for overtime opportunities; 3. On December 21, 2010, the supervisor of maintenance operations (SMO), bypassed him for an overtime opportunity; 4. On July 1, 2011, the SMO changed his schedule so that he could attend a training class within his tour of duty while allowing a co-worker to attend the same class while in overtime status; 0120123253 2 5. On unspecified dates, Complainant’s co-workers were given easier and cleaner work assignments than him; 6. On June 23 and July 3, 2011, SMO and the relief supervisor (RS), respectively, denied his requests for annual leave; and 7. On November 6 and November 13, 2011, the SMO did not give him the opportunity to work overtime. Complainant also claimed that these incidents constituted discriminatory harassment. In a notification of partial acceptance dated December 23, 2011, the Agency notified Complainant that it had accepted his claim only with respect to incidents (6) and (7). The Agency dismissed the portion of the claim covering incidents (1) and (2) for untimely contact with an EEO counselor, noting that each instance in which he was bypassed for overtime constituted a discrete event that should have triggered his awareness of the need to initiate the EEO process. The Agency dismissed the part of the claim involving incidents (3) and (4) for mootness on the grounds that both matters were resolved via settlement agreements reached on March 29, 2011, and August 18, 2011, respectively. Finally, the Agency dismissed the portion of the claim involving incident (5) for vagueness and lack of specificity. The investigator noted that by letter dated March 12, 2012, she asked Complainant to provide a supplemental affidavit on incident (5), but that Complainant failed to do so. IR 8, 13-14, 26, 69-70, 89-93, The Agency investigated the remaining portion of the claim, and at the conclusion of the investigation. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency dismissed the portion of the claim covering incident (7) on the grounds that the parties had entered into a settlement agreement on November 30, 2011, pursuant to which Complainant would be awarded 16 hours of overtime pay within 90 days of the date of the agreement. On the issue of entitlement to compensatory damages, the investigator sent Complainant a supplemental affidavit via express mail, which Complainant received on January 13, 2012. The enclosed notice stated that the affidavit had to be completed and postmarked no later than 15 days after receipt. Complainant did not return this affidavit to the investigator. IR 45-49, 142-44, 147, 161-62, 175, 424. Ultimately, the Agency concluded that Complainant failed to prove that the Agency had discriminated against him. Complainant thereafter filed a notice of appeal, but did not submit a brief or supporting statement challenging the Agency’s dismissal of the portions of his claim involving incidents (1) through (5) and (7). The salient facts pertaining to incident (6) are summarized herein. On January 16, 2011, Complainant submitted a request to the SMO for 80 hours of annual leave to be taken between August 28 and September 8, 2011, which the SMO approved. On June 23, 2011, Complainant 0120123253 3 submitted a leave slip to the SMO in which he requested 8 hours of annual leave to be taken on July 17, 2011. The SMO disapproved the request, noting in the leave approval form that the calendar was full, meaning that there were too few technicians on duty. On July 3, 2011, Complainant submitted an identical request to the RS. The RS initially denied the request, but later that day she approved it for 4 hours of annual leave. Complainant averred that he was treated differently than JM, a white technician, in that JM’s leave request was approved despite the calendar being full. Complainant appears to be stating that the SMO allowed JM to take leave while he, Complainant, was on vacation, but did not allow him to take leave while JM was on vacation. He also stated that he was the only African-American electronics technician on the tour. IR 54-55, 102-07, 118-21. The SMO averred that he could not recall the details of his decision to deny Complainant’s leave request on June 23. However, the SMO made the following statement in his affidavit: At the beginning of the year I had been granting annual leave to more than one person in an occupational group. My manager informed me I should discontinue this practice. Our LMOU allows 13% annual leave in June, July, and August, and 10% the remainder of the year. This is only a single person as I have so few people on tour 3. [RS] failed to enter an employee’s scheduled training in the weekly scheduling calendar and an error was made on granting leave to [JM]. The SMO identified three other employees whose requests for leave were denied under the same circumstances as Complainant, all of whom were Asian. IR 169-71, 180-81. The RS identified herself as Asian. She likewise averred that she did not recall the specifics of her decision to deny Complainant’s request for leave on July 3, other than the fact that she was serving as a relief supervisor on that day. When asked by the investigator whether she was aware of Complainant’s race or color, she replied: “No. I never made my decisions based on people’s race. And I don’t want other people to treat me differently based on my race or my color. I am not interested in knowing people’s race [and] I am not interested in looking at people’s color. People’s color is not important.” When asked by the investigator why she denied Complainant’s request for leave, the RS replied, “too long to remember.” When the investigator asked her whether Complainant’s race or color were factors when he was denied leave, the RS reiterated that she never discriminated against people because of their race or color. IR 217-22. Complainant submitted documentation indicating that he was treated for post-traumatic stress disorder between 2001 and 2003. However, neither the SMO, the RS, nor the maintenance manager were aware of his condition. IR 111-17, 165, 203-04, 217-19. 0120123253 4 ANALYSIS AND FINDINGS We first address the Agency’s dismissal of the claim as it pertains to incidents (1) through (5) and (7). We exercise our discretion to do so notwithstanding Complainant’s failure to raise these issues on appeal. We begin with incidents (1) and (2), which the Agency dismissed for untimely contact with an EEO counselor. An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a). This time limit begins to run when that person reasonably suspects that discrimination had occurred. Soroush et al. v. United States Postal Service, EEOC Request No. 05A60449 (May 4, 2006). The alleged denials of overtime that occurred between December 2008 and December 2009 were discrete acts. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110-13 (2002). Consequently, Complainant should have had a reasonable suspicion of discrimination by December 31, 2009, at the latest. However, he did not contact an EEO counselor until August of 2011. He has not presented any argument or evidence on appeal showing that he was unaware of the 45-day time limit or that an allegedly discriminatory personnel action had occurred in 2009, that circumstances beyond his control prevented him from contacting an EEO counselor in early 2010, or that other reasons exist that would justify extending the time limit. 29 C.F.R. § 1614.105(a)(2). He has likewise not shown that the time limit should be set aside. See 29 C.F.R. § 1614.604(c) (the time limits in [29 C.F.R. Part 1614] are subject to waiver, estoppel, and equitable tolling). We therefore find that the Agency’s dismissal of that portion of the claim encompassing incidents (1) and (2) was proper. Incidents (3), (4), and (7) involve alleged denials of overtime. Agencies are required to dismiss complaints that are moot. 29 C.F.R. § 1614.107(a)(5). A complaint is moot if there is no reasonable expectation that the alleged violation will recur, and events or interim relief have eradicated the effects of the alleged violations. County v. Los Angeles v. Davis . In all three incidents, the alleged instances in which Complainant had been bypassed for overtime had been resolved via settlement agreements reached through the grievance process. The occurrence of December 21, 2010, was addressed in a settlement reached on March 29, 2011. A settlement entered into on August 18, 2011, resulted in Complainant receiving the overtime he would have gotten if his schedule had not been changed by the SMO on July 1, 2011. Complainant and the Agency reached a third settlement agreement on November 30, 2011, which resulted in Complainant receiving 16 hours of overtime pay he would have gotten had he been allowed to work overtime on November 6 and November 13, 2011. Since the Agency gave Complainant the opportunity to submit an affidavit on his entitlement to compensatory damages, and Complainant declined to do so, we find that the Agency properly dismissed that portion of the claim involving incidents (3), (4), and (7). , 440 U.S. 625, 631 (1979) See Jackson v. USPS, EEOC Appeal No. 01923399 (Nov. 12, 1992), request to reopen denied , EEOC Request No. 05930306 (Feb. 1, 1993). 0120123253 5 Agencies must dismiss complaints that fail to state a claim. 29 C.F.R § 1614.107(a)(1). Complainant provides absolutely no information describing how the assignments given to his co-workers were “easier and cleaner” than assignments given to him. He likewise provides no specific dates on which these alleged occurrences took place. Allegations that contain no specific incidents to investigate are too vague to state a claim. Bliden v. United States Postal Service, EEOC Appeal No. 0120131795 (August 30, 2013). Before dismissing such a complaint outright, however, the Agency should attempt to clarify the allegation. See Lyles v. United States Postal Service , EEOC Appeal No. 01A44029 (January 14, 2005). The Agency did so when the investigator sent Complainant a supplemental affidavit asking for additional information on incident (5). In light of Complainant’s failure to provide the investigator with the requested information, we concur with the Agency’s dismissal of incident (5). To prevail in a disparate treatment claim such as that set forth in incident (6), 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 Company v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with, however, since the SMO and the RS articulated a legitimate and nondiscriminatory reason for not approving his requests for annual leave on June 23 and July 3, 2011, namely that the leave calendar was full on July 17, 2011, the day he wished to take leave. See U.S. Postal Service Board of Governors v. Aikens , 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanation given by the SMO and the RS for disapproving his leave request for July 17, 2011, is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000). Decisions made by agencies in the course of business should not be disturbed unless there is evidence of unlawful motivation. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Such evidence may take the form of discriminatory statements or past personal treatment, comparative or statistical data, unequal application of Agency policy, or deviations from standard procedures without explanation or justification. See McDonnell Douglas Corporation v. Green ; , 411 U.S. at 804-05 Hovey v. Department of Housing & Urban Development, EEOC Appeal No. 01973965, (Aug. 31, 2000). Initially, we note that the SMO, the RS, and the maintenance manager all stated that they were unaware that Complainant had a disability. Complainant has not presented any evidence showing otherwise, either during the processing of his complaint or on appeal. In terms of race and color discrimination, Complainant appears to be basing his claim solely on the fact that he was the only African-American electronics technician on tour 3. While the SMO and the RS could not recall precisely the circumstances under which they disapproved Complainant’s requests for annual leave on June 23 and July 3, 2011, respectively, they both, in essence, denied that they harbored any discriminatory animus. The RMO cited the shortage of personnel on tour 3 as well as the admonition from his manager to not grant annual leave to more than one person in an occupational group. The RS expressly denied that she was motivated by unlawful 0120123253 6 considerations of Complainant’s race or color. Moreover, the RS actually accommodated Complainant’s leave request by giving him half of the annual leave he had asked for. Complainant has not presented any documents or sworn statements which contradict the affidavits of these officials, or which undermine their credibility. He has not presented any evidence of past discriminatory statements attributable to either the SMO or the RS, nor has he shown that in denying his leave requests, the SMO or the RS deviated from the Agency’s established policy regarding approval of annual leave. He has not presented any other evidence, comparative, statistical, or otherwise, sufficient to rebut the explanations given by the SMO or the RS for denying his requests for annual leave on June 23 and July 3, 2011. Lastly, we address Complainant’s harassment claim as it pertains to incidents (3), (4), (6), (7), with incidents (1) and (2) considered as background evidence in support of his claim. Wegener v. Department of the Interior, EEOC Appeal No. 01A03847 (June 11, 2003). Harassment of an employee that would not occur but for the employee's race, color, or disability is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998). For any of the cited incidents to rise to the level of unlawful harassment, they would have to be so objectively offensive as to alter the conditions of Complainant’s employment. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). None of the incidents described in this complaint meet that standard, either singly or collectively. In every instance in which Complainant was allegedly denied overtime, he eventually received the overtime pay he was asking for. And in the one instance in which Complainant was denied annual leave for one day, the RS eventually let him take annual leave for a half-day. To the extent Complainant argues that incident (6) constitutes discriminatory harassment, his failure to prove that the denials of his leave requests on June 23 and July 3, 2011, by the SMO and the RS were motivated by consideration of his race, color, or disability precludes such a finding. See Oakley v. United States Postal Service , EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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: 0120123253 7 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 0120123253 8 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 Date September 11, 2014 Copy with citationCopy as parenthetical citation