0120073379
09-26-2007
George A. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
George A. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120073379
Hearing No. 560-2007-0013X
Agency No. 4J-630-0088-06
DECISION
On July 20, 2007, complainant filed an appeal from the agency's July 6,
2007, 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
On August 8, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (African-American), sex (male),
and age (D.O.B. 02/02/50) when he submitted his resignation (forced)
on June 21, 2006, following a discussion regarding his work performance.
The record reflects that complainant was employed as a Casual City
Carrier at the Maryville Gardens Station in St. Louis, Missouri.
Complainant began his employment with the agency in May of 2006 and
resigned from the position effective June 21, 2006. The record reflects
that complainant submitted PS Form 2574 (Resignation from the Postal
Service) dated June 21, 2006, due to personal reasons and discrimination.
On the same date, the Supervisor, Customer Services (SCS) completed a
Request for Separation Form, reflecting that complainant's separation
was due to personal reasons. Subsequently, the SCS sent an e-mail to
other management officials in the agency's Gateway District, indicating
that he attempted to discuss complainant's job performance with him,
when he became loud and disruptive and used abusive language. The SCS
stated that complainant refused several requests to calm down and stated
that he wanted to resign. The SCS then recommended that complainant be
terminated for unsatisfactory job performance and for failure to follow
supervisory instructions, as he abandoned his assigned job duties.
Complainant alleged that he was harassed by the SCS regarding his work
performance, and that the SCS gave him instructions regarding his
job performance that he had never given to others. The SCS stated
that complainant was initially assigned to a low mail volume route
which was ideal for newly appointed carriers. The SCS also stated that
complainant's race, sex and age were not factors in his decision to hold
the discussion with complainant regarding his job performance.
Believing he was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant was provided 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, the AJ cancelled the hearing and remanded the case
to the agency as complainant failed to comply with the AJ's pre-hearing
orders. The AJ remanded the complaint to the agency, and the agency
issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that he was subjected to
discrimination as alleged.
Addressing complainant's allegations of race, sex and age discrimination,
the FAD assumed that complainant was a member of protected groups as
alleged. However, the FAD found that complainant failed to demonstrate
that he was subjected to an adverse employment action relative to
the resignation he submitted on June 21, 2006. The FAD found that
the evidence established that complainant voluntarily resigned from
the agency, in the midst of a discussion of his work performance with
the SCS. The FAD found that management testimony demonstrates that
complainant was called into a meeting on the date at issue to discuss his
job progress and performance to determine whether additional training
was warranted. The FAD found that while complainant disagreed with
the SCS's assessment of his job performance to that point, there is no
evidence that complainant was threatened with termination from the agency
if he did not resign. As such, the FAD found that the decision to resign
was complainant's and should be considered to be voluntary. FAD at 8.
In addition, the FAD found that complainant failed to establish that
there were any similarly situated employees not in his protected groups
who were treated differently under similar circumstances. Further,
the FAD noted that although complainant attempted to demonstrate that
the SCS's actions were part of a hostile work environment, the SCS was
a member of the same protected groups with regard to race, age and sex
as was complainant, making it unlikely that he would harass complainant
on these bases. In addition, the FAD noted that the SCS articulated
legitimate, nondiscriminatory reasons for its actions, namely that he
sought to discuss complainant's job performance with him on the date at
issue and complainant became verbally abusive and stated his desire to
resign from the agency. The FAD further found that complainant failed
to proffer evidence which suggested that the agency's articulated reasons
for its actions were pretextual in nature. Complainant has submitted no
arguments on appeal, and the agency has not responded to complainant's
appeal.
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 EEOC Management
Directive 110, 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").
We note that complainant has alleged constructive discharge, as his
resignation was forced after his discussion with the SCS. Constructive
discharge occurs when an employer deliberately renders an employee's
working conditions so intolerable that the individual is forced
to resign from his/her position. Constructive discharge only occurs
when the agency's actions were taken with the intention of forcing the
employee to resign. The Commission has established three elements which
complainant must prove to substantiate a claim of constructive discharge:
1) a reasonable person in complainant's position would have found the
working conditions intolerable; 2) the conduct causing the intolerable
working conditions is an EEO violation; and 3) complainant's resignation
was caused by the intolerable working conditions. See Taylor v. Army
and Air Force Exchange Service, EEOC Request No. 05900630 (July 20,
1990); see also Perricone v. United States Postal Service, EEOC Request
No. 05900135 (June 11, 1990).
After a review of the record, the Commission finds there is no evidence in
the record that the incident with the SCS was related to complainant's
race, sex or age. We further find complainant failed to establish
disparate treatment, as there were no similarly situated employees who
were treated differently under similar circumstances. Regarding the
conversation on June 21, 2006 between complainant and the SCS, the record
indicates that the SCS sought to discuss complainant's job performance
and his progress. Complainant disagreed with the assessment of the SCS
regarding his job progress and voluntarily submitted his resignation.
Investigative Report at Affidavit B; Exhibits 2-4. Further, complainant
has not established that a reasonable person would have found his
working conditions so intolerable that he would have resigned from his
position. There is also no indication that the conduct of the SCS in
the meeting with complainant discussing his job performance would have
led a reasonable person to find the working conditions intolerable.
Therefore, we find that complainant has not satisfied the criteria for
establishing a constructive discharge.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
___9/26/07_______________
Date
2
0120073379
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073379