George A. Anderson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionSep 26, 2007
0120073379 (E.E.O.C. Sep. 26, 2007)

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

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0120073379

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120073379