01994030
12-20-2001
Joel M. Rose, III Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Joel M. Rose III v. United States Postal Service
01994030
12/20/01
.
Joel M. Rose, III
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01994030
Agency No. 4-H-320-0206-97
DECISION
Joel M. Rose, III (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of national origin (American), age (DOB:
9/21/50)), reprisal (prior EEO activity) and physical disability (back,
shoulder and nerves), in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. The appeal is accepted in accordance with
29 C.F.R. �1614.405. For the following reasons, the agency's decision
is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether complainant was subjected to discrimination
on the aforementioned bases when on May 17, 1997, he was given a Letter
of Warning.
BACKGROUND
The record reveals that at the time complainant filed the instant
complaint, he was employed as a Letter Carrier, PS-05, at the agency's
Nobles Post Office in Pensacola, Florida. In his affidavit to the
EEO Investigator, complainant asserted that his Temporary Supervisor
(hereafter 204-B) directed racial remarks against the Carriers in
his section. Complainant also stated that the 204-B threatened him
on two occasions and used his position to harass him. Additionally,
complainant stated that he was on a limited duty assignment and the
204-B attempted to push him into making a mistake.
At the conclusion of the investigation, the agency informed complainant of
his right to request a hearing or a final agency decision. Complainant
failed to make an election within the prescribed time period, and on
March 23, 1999, the agency issued a FAD. In its FAD, the agency found
that complainant failed to establish a prima facie case of discrimination
on any of his identified bases.
CONTENTIONS ON APPEAL
Complainant did not raise any new contentions or arguments on appeal.
However, he did submit a number of documents which are related to
this case and which were submitted to the Commission as part of a
prior appeal. See Joel M. Rose, III v. United States Postal Service,
EEOC Appeal No. 01980015 (October 29, 1998). These documents tend to
establish that complainant had a documented on-the-job injury for which
he was given a modified job offer in June of 1996. The documents also
establish that complainant reported to his doctor that he suffered a
panic attack on May 17, 1997, which was purportedly induced by the 204-B.
Further, the documents included statements from several of complainant's
co-workers which corroborate complainant's assertion that the 204-B made
racial and age related comments against the Carriers in his section.<1>
The agency did not submit any response to complainant's appeal.
ANALYSIS AND FINDINGS
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). This method of analysis is also applicable to Title
VII and to age discrimination cases. See Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979). Complainant has the initial burden of establishing a
prima facie case of discrimination. 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, nondiscriminatory 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.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
a preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination. Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the Manager of Customer Services (hereafter MCS), testified
that complainant was given the Letter of Warning because he failed to
maintain a regular schedule and he failed to perform his duties as a
Carrier.<2> In this regard, the MCS stated that complainant exhibited no
sense of urgency in the office or on the street and while in the office,
complainant engaged in unwarranted conversations with neighboring routes
and he took unauthorized smoke breaks, thus extending his street time.
The MCS also noted that at the time complainant was given the Letter of
Warning, his only physical restriction was that he should not lift in
excess of 35 pounds.
Based on the MCS's testimony, we find that the agency has articulated
legitimate nondiscriminatory reasons for issuing the Letter of Warning.
Because the agency articulated legitimate nondiscriminatory reasons
for the challenged personnel action, complainant must demonstrate that
the reasons are pretextual and/or that the agency was motivated by
discriminatory animus in taking the challenged action.
Upon reviewing the record as a whole, the Commission finds that
complainant failed to show by a preponderance of the evidence that
the reasons articulated by the agency for its action was pretext for
discrimination. In this regard, we note that except for his bare
assertion that he was subjected to disparate treatment, complainant
presented no evidence to show that the reason articulated by the agency
for its action was a pretext for discrimination.
To the extent that complainant is raising a claim of harassment in the
instant complaint, the Commission notes that it has repeatedly found
that claims of a few isolated incidents of alleged harassment usually are
not sufficient to state a harassment claim. See Phillips v. Department
of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks
v. Health and Human Services, EEOC Request No. 05940481 (February
16, 1995). Assuming ,arguendo that the racial comments attributed
to the 204-B are true, we find that: (1) these comments were not made
in connection with the challenged personnel action, and thus are not
dispositive of complainant's claim of discriminatory treatment and (2)
taken individually or as a group, they are not sufficiently severe or
pervasive enough to unreasonably interfere with his work environment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) see also
Roderick L. Ott v. Department of Energy, EEOC Appeal No. 01981893
(June 8, 2000) (Commission ruled that a single racial remark was not
pervasive or severe enough to constitute harassment). Although racial
comments are deplorable and have no place on the workroom floor, the
Commission finds that the comments cited by complainant are insufficient
to establish discriminatory animus on the part of the 204-B. See EEOC
v. Murphy Motor Freight, 488 F. Supp. 381 (D. Minn. 1980) ((held that
a few incidents of racial slur is not enough to create an hostile or
offensive work environment) see also Harriet W. Woodard v. Social
Security Administration, EEOC Appeal No. 01991590 (March 16, 2000)
(Commission held that racial comments unaccompanied by any concrete
effect does not render complainant aggrieved).
Accordingly, the agency's finding of no discrimination on the
aforementioned bases with respect to the issuance of the challenged
personnel action is AFFIRMED.
CONCLUSION
Therefore, the agency's finding of no discrimination with respect to
the challenged action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
12/20/01
__________________
Date
1 Among the statements made by complainant's
co-workers is one in which the 204-B is accused of commenting loudly on
the workroom floor that �the 14 Section was a sorry bunch of old men.�
Another Carrier submitted a statement saying that he heard the 204-B
state that �if it wasn't for his son, he would not be here supervising
these slow, lazy, southern rednecks!�
2 The actual Letter of Warning charged complainant with failure to
maintain a regular schedule and for leaving his work area without
authorization. Report of Investigation Ex. 2