01997167
01-09-2002
James Guinan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James Guinan v. United States Postal Service
01997167
01-09-02
.
James Guinan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997167
Agency Nos. 1-C-441-0201-98
1-C-441-0012-99
1-C-441-0013-99
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented herein are:
whether complainant has shown by preponderant evidence that the agency
subjected him to unlawful harassment based on his sex (male), race
(white), disability (head injury and stress), and reprisal (prior EEO
activity)<1> when: (1) on July 30, 1998, he was issued a fourteen-day
suspension; (2) on September 24, 1998, he was harassed by management
when he clocked out early; and (3) on September 25, 1998, he was refused
medical treatment and harassed about requesting leave; and
whether the agency properly dismissed, pursuant to 29 C.F.R. �
1614.107(a)(1), claims alleging discrimination when: (4) on an
unspecified dates, his safety concerns went unaddressed by management;
he was taken off the list allies (a type of assignment), and made to use
unsafe equipment; and (5) on unspecified date, his medical documentation
was disputed and not given to the �MDO.�
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Clerk at the agency's General Mail Facility in Cleveland, Ohio.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December 12, 1998,
and two formal complaints on November 24, 1998. The agency consolidated
the complaints into a single investigation. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. When complainant failed to respond within the
time period specified in 29 C.F.R. � 1614.108(f), the agency issued a
final decision.
Initially, the FAD found that claims (4) and (5) failed to state a claim.
In particular, the agency found that complainant failed to show that he
was aggrieved. Therefore, the agency dismissed both claims pursuant to
29 C.F.R. � 1614.107(a)(1).
In its FAD, the agency also concluded that complainant failed to establish
his claim of discrimination. The agency found that complainant did not
establish his prima facie cases of race, sex, reprisal, or disability
discrimination. Assuming complainant established his prima facie cases,
the agency determined that it articulated legitimate, nondiscriminatory
reasons for its actions. Finally, the agency concluded that complainant
failed to show that the agency's articulated reasons were a pretext
to mask prohibited discrimination. Accordingly, the FAD found no
discrimination.
On appeal, complainant contends that the agency improperly handled his
complaints. He objects that the three complaints were consolidated.
Further, complainant argues that he has been the victim of harassment
for a long time. Complainant also requests an opportunity to prove his
case to an EEOC Administrative Judge. He also claims that employees
fear retaliation speaking up. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Contentions on Appeal
Complainant requested the opportunity to present evidence of the
agency's lies before an Administrative Judge. We note that, at the
end of the investigation, complainant received a copy of the Report of
Investigation and was informed of his right to request, within thirty
days of receipt of the report, a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
Complainant failed to make an election within thirty days, as required
by EEOC Regulation 29 C.F.R. 1614.108(f). Accordingly, we find that
complainant is not entitled to a hearing.
Complainant also claimed that the agency improperly consolidated his
three EEO complaints. EEOC Regulation 29 C.F.R. � 1614.606 provides,
in relevant part, that, after appropriate notification, �[t]wo or more
complaints of discrimination filed by the same complainant shall be
consolidated by the agency for joint processing.� Therefore, we find
that the agency complied with EEOC regulations when it consolidated the
complaints for processing.
Procedural Dismissals of Claims (4) and (5)
Upon review, the Commission concludes that the agency improperly
dismissed these claims for failure to state a claim. In particular, we
find that complainant was aggrieved with respect to claims (4) and (5).
We note that the agency's investigation included claim (4) and we find
that the record has been sufficiently developed to address this claim.
As to claim (5), there is no information within the record in order
for the Commission to address this matter on the merits. We, however,
dismiss claim (5) as moot.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for a
determination of the rights of the parties is presented. Complainant
informed the Commission on appeal that he resigned from his position
at the agency, therefore, we are satisfied that there is no reasonable
expectation that the alleged violation will recur. We also note that
there is no evidence of any negative residual effects of the alleged
incident raised in claim (5).<2> Since we find that there is no relief
available for complainant as to claim (5), we dismiss this claim as moot.
Disparate Treatment
Since the alleged incidents individually state a claim of disparate
treatment, the Commission will also address complainant's claims under
this theory of discrimination. A claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to
prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to the suspension action in
claim (1), the record indicates that complainant was informed on July 9,
1998, that it was not permissible to have a tape recorder on the workroom
floor. On July 14, 1998, the Acting Manager confiscated complainant's
recorder which he again brought on to the workplace. Based on these
events and a conversation the Automation Supervisor (AS) had with
complainant, the AS issued him a fourteen-day Notice of Suspension.
As to the September 24, 1998 incident of claim (2), complainant did
not have his badge at work to ring in or out. Complainant's immediate
supervisor (IS) rang him in and instructed him to report to her at 1550
to verify his tour and to ring out. Both complainant and the IS stated
that complainant returned to clock out at 1537, thirteen units earlier
than when he was to finish his tour. The IS stated that she would not
have minded complainant appearing a couple of units early, but that
thirteen units was too much. Therefore, the IS clocked complainant out
at 1537 rather than at 1550 which complainant had expected.
As to claim (3) and the events of September 25, 1998, the IS indicated
that complainant became upset when she informed him that she rang him
out the previous day at 1537 rather than 1550. Complainant developed a
headache during the discussion with the IS and went to the Nurse's office.
The Nurse recommended that complainant be sent for an evaluation and
contacted the IS. The IS discussed the situation with the Acting Manager
and an official in the Injury Compensation Department. They determined
that it would be best for complainant to substantiate his claim of
work-related stress and sent him to his Employee Assistance Program (EAP)
appointment which was scheduled by the Nurse the day before. Following
the EAP appointment, complainant requested leave for the remainder of
the day. He noted on the request that the leave was based on an injury
on duty. He provided the leave request to the IS. She denied the leave
because, agency policy required that he also provide a completed CA-2
form to accompany his request. Complainant refused to do so.
In claim (4), complainant alleged that his safety concerns went
unaddressed by management, he was denied his choice of assignments,
and he was made to use unsafe equipment. The record includes several
reports of hazard and unsafe conditions regarding racks within the
agency written by complainant. Each report also indicates that an
action was taken by the IS on the same day complainant filed each the
report. The IS also averred that the agency's Safety Unit is aware of
the problems. As to the issue of complainant being removed from the
list of �allies,�<3> the IS indicated that she asked complainant if he
wanted to �allie,� and he said �no.� Therefore, she removed his name
from the list. As to the issue of unsafe equipment, the IS noted that
complainant could have moved to another rack if one was broken. Also,
the IS averred that complainant created a safety problem with the �DBCS
machines� in that he would not use the machine properly. Upon review of
the record, the Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions.
The burden returns to complainant who must now show that the agency's
reasons were pretext for discrimination. Complainant merely asserts
that agency officials �lied.� We find that complainant's assertion
alone provides no evidence to demonstrate that the agency's reasons for
its actions were pretext for prohibited discrimination.
Harassment
The Commission notes that the agency's FAD failed to address complainant's
claim that alleged incidents were part of an on-going claim of harassment.
It is well-settled that harassment based on an individual's race,
sex, disability, and/or prior EEO activity is actionable. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of harassment under those bases, the complainant must show that:
(1) he belongs to the statutorily protected classes and/or engaged in
prior EEO activity; (2) he was subjected to unwelcome conduct related
to his membership in those classes and his prior EEO activity; (3)
the harassment complained of was based on sex, race, disability and/or
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his/her work performance 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). 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 (March 8, 1994). Assuming for the sake of
argument that complainant has established his membership in his protected
groups, we find that he failed to establish a claim of harassment.
In particular, we note that complainant failed to present any evidence
demonstrating that the allegedly harassing incidents were based on his
sex, race, alleged disability, and/or prior EEO activity. Accordingly,
we find that complainant failed to establish his claim of harassment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the 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
__01-09-02________________
Date
1The record indicates that complainant filed
prior EEO complaints alleging discrimination in violation of Title VII
and Rehabilitation Act.
2 We note that complainant did not request compensatory damages in
his complaint.
3 The record does not provide an explanation for the term �allie� nor
the significance of the list of �allies.�