Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jun 21, 2013

0120121212 (E.E.O.C. Jun. 21, 2013)

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. 0120121212

Hearing No. 430-2011-00120X

Agency No. 1K-281-0043-10

DECISION

Complainant filed an appeal from the Agency’s December 5, 2011 Final Order 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., 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 Order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Charlotte Processing and Distribution Center in Charlotte, North
Carolina. On August 16, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), disability
(mental), age (57), and in reprisal for prior protected EEO activity when:

1. On April 22 and 23, 2010, Complainant’s sick leave request was marked unscheduled
and documentation was requested;

2. In April 2010, Complainant was not provided the opportunity for training;

3. On April 22, 2010, Complainant was moved from his bid job;

4. In April and May 2010, Complainant was stalked and taunted by management;
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5. On May 5, and 27, 2010, Complainant was charged Absent Without Leave (AWOL);
and

6. On June 10, 2010, Complainant was issued a Letter of Warning.

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. Upon motion by the Agency
dated June 9, 2010, the AJ assigned to the case determined that the complaint did not warrant a
hearing and granted the Agency’s motion. The AJ issued a decision without a hearing on
November 21, 2011.

In her Decision, the AJ found that the material facts were not in dispute. The AJ found,
regarding Complainant’s complaint insofar as it is based on disability, that Complainant
suffered from depression and anxiety.

Specifically, the AJ found the undisputed evidence showed that Complainant’s request for
leave for April 22, 2010 and April 23, 2010, was submitted on April 21, 2010. The AJ
considered Complainant’s contention that other employees had requested sick leave the day
before they were absent and were not charged unscheduled leave. The AJ found that leave
records showed only one of the employees, E1, Complainant identified as being treated better
had requested leave one day in advance and was not charged “unscheduled leave”. Leave
records did not show that the other employees were not absent as Complainant believed. The
AJ assumed that E1 should have been charged with unscheduled leave as Complainant had
been charged. The AJ did not find that the single example proved that Complainant’s race,
sex, disability, age, or prior EEO activity motivated the Agency to charge him with
unscheduled leave. (Claim (1))

Regarding claim (2), the AJ found the undisputed evidence showed that two of Complainant’s
coworkers, E2 and E3, were provided with training and that Complainant was not. The AJ
found that the coworkers were given the training because they asked for it. The AJ found no
evidence that Complainant had requested the training and been denied it.

Regarding claim (3), the AJ found that Complainant was moved by his supervisor to another
work area. Complainant argues, the AJ noted, that an employee with less seniority should
have been moved instead. The AJ found the undisputed evidence established that employees
are moved to process the mail effectively. The AJ found Complainant presented no evidence
that discrimination played any role in the Agency’s decision to reassign Complainant to other
duties when Complainant had no more mail to process where he was.

With respect to claim (4), the AJ found that Complainant alleged he was been followed or
stalked by S1 and S2. The AJ found that Complainant did not identify specifically when this
occurred, nor what specific taunts Complainant endured. The AJ further found that
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Complainant’s supervisors were responsible for monitoring Complainant’s work. The AJ
found that Complainant did not present evidence that he was being discriminatorily observed or
taunted.

Regarding claim (5), the AJ noted that Complainant objected to being charged AWOL, and
subsequently receiving a written warning for failure to maintain regular attendance (claim (6)).
However, the AJ found that Complainant presented no evidence linking his race, sex,
disability, age, or previous EEO activity, with the Agency’s actions.

The AJ considered Complainant’s overall claim of harassment and found the undisputed
evidence showed that Complainant complained of common workplace events. The AJ found
the ordinary workplace incidents were not sufficiently severe nor pervasive to state a claim of
harassment and that Complainant did not link the workplace events to any of his protected
bases.

Regarding Complainant’s complaint based on reprisal, the AJ noted that Complainant’s last
prior protected activity closed in 2008, and did not involve any of the Agency officials
identified in the instant complaint. The AJ found this prior protected activity was too remote
for Complainant to establish a prima facie case of reprisal discrimination. Moreover,
Complainant’s EEO activity in the instant complaint was not known to the responsible
management officials, the AJ found, until July 28, 2010.

The AJ concluded that viewing all of the evidence in the light most favorable to Complainant,
that he did not show that he was subjected to discrimination as alleged. The Agency
subsequently issued a Final Order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case.

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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 the 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.

To establish a claim of harassment a complainant must show that: (1) they belong to a
statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their 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 to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.

, EEOC
Notice No. 915.002 at 6 (Mar. 8, 1994).
In the instant case, we find the AJ properly issued her Decision without a hearing. We find the
material facts are not disputed. With respect to Complainant’s complaint insofar as it is based
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on disability, we assume, without so finding, that Complainant is a qualified individual with a
disability. Regarding Complainant’s complaint based on reprisal, we note, as did the AJ, that
Complainant’s prior EEO activity was more than two years before the incidents of the instant
complaint. Even so, in our analysis, we will assume that Complainant established a prima
facie case of reprisal discrimination.

We find no dispute that Complainant requested leave one day in advance and that his request
was considered unscheduled. We further find no dispute that Complainant was required to
submit documentation regarding his need for leave. (Claim (1)). We find the AJ properly
found that two of the three employees Complainant identified as receiving preferential
treatment were not treated better. As did the AJ, we find no evidence that E1 was granted
leave on April 16, 2010, nor was E2 granted leave on June 4, 2010. We find the record shows
that E3 was granted leave for June 10, and 11, 2010. E3, the record shows, did not hold the
same position as Complainant, but occupies the position of General Expediter. We find no
dispute that E3 is not substantially younger than Complainant. Even if we assume that E3 was
similarly situated to Complainant, we agree with the AJ, that Complainant did not present any
evidence from which an inference can be drawn that Complainant’s race, sex, disability, age or
prior EEO activity motivated the Agency’s decision to charge Complainant’s leave as
unscheduled and to require that he submit documentation.

Regarding claim (2), we find, as did the AJ, that Complainant presented no evidence he
requested training until August 2, 2010. We therefore find that Complainant was not
discriminatorily denied training in April 2010.

With respect to claim (3), we find no dispute that the Agency moved Complainant from his
regular work area to another location. We find no dispute that other employees were also
moved and no dispute that the Agency has the authority to assign Complainant to other duties
as needed. We observe that E4, an employee that Complainant states was also moved, is also
a Mail Processing clerk, female, Caucasian, and approximately the same age as Complainant,
with no prior EEO activity. We find that underlying Complainant’s claim is an allegation that
the Agency violated the seniority structure by which the Agency agrees to abide for such
moves. We find Complainant has not presented any evidence from which an inference can be
made that discrimination motivated the Agency’s actions as described in claim (3).

Regarding claim (4), we concur with the AJ that Complainant failed to present sufficient
evidence from which it could reasonably be found that he was stalked and taunted by his
supervisors whose responsibilities include oversight of Complainant’s position. We consider
Complainant’s claim that he was generally harassed by S1 and that he asked her to stop
harassing him. We find, as did the AJ, that Complainant did not describe specific derogatory
comments made to him or any unwelcome conduct other than ordinary supervision sufficient to
state a claim of discriminatory harassment.

With respect to claims (5) and (6), we find no dispute that Complainant was absent as
described in the LOW identified in claim (6), and that Complainant was charged with AWOL
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as alleged when he called in on May 27, 2010, more than an hour after he was scheduled to
begin his shift. We find that Complainant claims his absences were the result of his medical
condition and that the Agency improperly charged him with AWOL when his claim for leave
under the Family Medical Leave Act (FMLA) should have been taken into consideration and
he should have been granted sick leave as necessary. We do not find any evidence that
Complainant requested a reasonable accommodation and he did not make such an assertion in
opposition to the motion for summary judgment or on appeal. We find the undisputed
evidence shows that other employees, not in Complainant’s protected groups, were also
charged with unscheduled leave or AWOL, as Complainant was, and that they also received
written discipline. We find Complainant did not present any evidence from which to conclude
that he was treated differently based on his race, sex, disability, age, or prior EEO activity.
Furthermore, we agree with the AJ that Complainant failed to show that he was subjected to a
discriminatory hostile work environment.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Order, 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
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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

June 21, 2013
Date