Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionSep 11, 20140120130482 (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. 0120130482 Agency No. 1K-201-0016-11 DECISION On October 30, 2012, Complainant filed an appeal from the Agency’s October 1, 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. 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 At the time of events giving rise to this complaint, Complainant worked as a mail handler at the Curseen-Morris Processing and Distribution Center in Washington, DC. On July 30, 2011, Complainant filed an EEO complaint in which he alleged that his supervisor, the customer services manager, harassed him because of his gender between January and April 2011. The agency dismissed the complaint for mootness, untimeliness, and failure to state a claim, but in Complainant v. United States Postal Service , EEOC Appeal No. 0120120290 (March 30, 2012), the Commission reversed the agency’s dismissal and remanded the complaint for processing. 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to harassment as alleged. 0120130482 2 Complainant’s harassment claim consists of four incidents, the salient facts of which are summarized below. Incident (1) – On January 23, 2011, the customer services manager issued Complainant a letter of warning. The customer services manager issued Complainant a letter of warning dated January 23, 2011, charging him with failure to be regular in attendance. The letter identified seven unscheduled absences that occurred between October 2, 2010, and January 2, 2011. Three of those absences were due to sick leave usage and the other four were instances of tardiness. Complainant grieved the matter, but the grievance was denied at step 1. Nevertheless, the Agency removed the letter of warning from his personnel record on August 8, 2011. Investigative Report (IR) 116-117, 152-54, 182-83. Incident (2) - On March 5, 2011, the customer services manager threatened Complainant and imposed stricter requirements on him than on a female employee. In his complaint1 , Complainant alleged that the customer services manager did not allow him to talk to other employees but regularly allowed a female employee to stop working and talk with the truck drivers for hours. The customer services manager averred that he frequently observed Complainant not performing his duties and that other employees often had to pick up the slack. He stated that Complainant had been instructed to unload trailers at the beginning of his tour, and that on many occasions, Complainant would only have unloaded two trailers after three hours, a feat which other employees had accomplished in twenty minutes. The customer services manager also averred that Complainant would often go on breaks that lasted between 25 and 50 minutes, notwithstanding that employees were only allowed to take 15-minute breaks. The customer services manager noted that he would frequently observe Complainant hiding in a trailer, talking on his cell phone. When asked by the investigator whether he had imposed tighter limits on Complainant than on female employees, the customer services manager replied that he did not, and emphasized that he had taken disciplinary actions against female employees as well as male employees. Overall, the customer services manager maintained that Complainant was a non-performer. He averred that he helped Complainant change his off-days so that he could take classes, and that he helped Complainant get a detail that he wanted. IR 14, 19, 117-18, 123, 190, 226-29. Incident (3) – On April 9, 2011, his supervisor used a leave slip technicality to issue him a seven-day suspension. The customer services manager averred that he had issued Complainant a seven-day, no-time- off suspension on a charge of absence without official leave (AWOL). He stated that 1The investigator had asked Complainant to submit an affidavit, but Complainant refused to do so. The request was delivered to Complainant via priority mail but was refused by him and returned, unanswered, to the investigator. IR 10, 103, 107-08, 111-14. 0120130482 3 Complainant had abandoned his assignment by leaving the premises after he had been told that he could not have the leave he had previously requested. When asked by the investigator what technicality Complainant was referring to, the customer services manager replied that Complainant claimed that he had given the wrong date after he was charged with AWOL. The distribution operations manager on duty at the time, to whom the customer services manager reported, concurred in the suspension. By memorandum dated May 31, 2011, the customer services manager notified a union representative that Complainant’s seven-day suspension had been rescinded. IR 119-20, 136, 189. Incident (4) - On April 26, 2011, the customer services manager accused Complainant of defrauding the Post Office. On May 9, 2011, the customer services manager issued a notice of no-time-off suspension of 14 days or less, again on a charge of AWOL. The notice stated that, on April 24, 2011, Complainant had asked if he could get off early that day and was told that he could not. Complainant left the building anyway, sometime after 12:00 noon. The notice further stated that, during a pre-disciplinary interview, Complainant told the customer services manager that he had given him a leave slip the week before, and that the customer services manager responded that he had information that Complainant had asked one of his co-workers to confirm that Complainant had submitted a leave slip, and that the co-worker refused because he was not scheduled to work that day. In the notice, the customer services manager stated, “I find your response totally dishonest and attempt to defraud the Post Office.” The notice also stated that, while Complainant would not serve time off with this suspension, it has the equivalent degree of seriousness as if he had served time off without pay. Finally, the customer services manager warned Complainant that future infractions of this nature would result in more severe disciplinary action being taken against him. IR 118, 120-21, 184-90. ANALYSIS AND FINDINGS To prevail on a claim of discriminatory harassment, Complainant must establish that, because of his gender, he was subjected to conduct that was so severe or so pervasive that a reasonable person in his position would have found the conduct to be hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service , EEOC Appeal No. 01972699 (Aug. 14, 1998). After reviewing the record, we find that Complainant is unable to make such a showing. As to severity or pervasiveness, the disciplinary actions at issue in incidents (1), (3), and (4) are supported by contemporaneously prepared memoranda of disciplinary interviews, Complainant’s attendance records, and sworn statements from two management officials: the customer services manager and the distribution operations manager. As to incident (2), the customer services manager stated without contradiction that Complainant had an extensive track record of non-performance, and that what Complainant had characterized as threats was merely the customer services manager telling Complainant on numerous occasions to do the job that he was hired to do. Moreover, the letter of warning and the two suspensions were 0120130482 4 effectively rescinded and removed from his personnel file. Consequently, none of these incidents were either severe or pervasive enough to rise to the level of harassment by any objective measure, either individually or collectively. As to motive, the customer service manager characterized Complainant as a chronic non- performer. The letter of warning and the two notices of suspension rested on documented instances of failure to be regular in attendance, failure to perform the required duties of his position, absence without leave, and conduct which might well have led to fraud charges being brought. The customer services manager stated without contradiction that he disciplined both male and female employees who had committed infractions, and the record bears this out. Complainant has not presented any documents or sworn statements, which contradict the statements made by the customer services manager in his affidavit, or which undermine the customer services manager’s credibility. The record overwhelmingly establishes that considerations of Complainant’s sex were not a motivating factor in any of the incidents comprising Complainant’s harassment claim. CONCLUSION Based on a thorough review of the record, 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: 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. 0120130482 5 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 Date September 11, 2014 Copy with citationCopy as parenthetical citation