0120072887
02-16-2010
John K. Stacks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
John K. Stacks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120072887
Hearing No. 410-2007-00074X
Agency No. 4H-310-0063-06
DECISION
On June 9, 2007, complainant filed an appeal from the agency's May 8,
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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.
ISSUE PRESENTED
The issue presented is whether the agency properly found that complainant
had not been discriminated against based on his race, color, and physical
disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Distribution Clerk at the agency's Valdosta Post Office facility in
Valdosta, Georgia. On August 1, 2006, complainant filed an EEO complaint
alleging that he was discriminated against and subjected to a hostile
work environment on the bases of race (African-American), color (black),
and physical disability when:
1. on April 25, 2006, he was issued a Fourteen (14) Day Suspension for
Failure to Follow Instructions, which was rescinded;
2. on May 15, 17, and 18, 2006, he was verbally assaulted and addressed
in a demeaning manner; and
3. on May 25, 2006, he was issued a Notice of Proposed Removal for Failure
to Follow Instructions, Failure to Be Gainfully Employed, and Causing
a Disruption on the Workroom Floor, which was subsequently reduced to
a Thirty (30) Day No Time Off Suspension.
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 timely
requested a hearing, but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final agency decision (FAD), the agency first found that claim 1
should be dismissed under 29 C.F.R. � 1614.107(a)(5), as moot, because
the suspension was rescinded and the agency found that there was no
reasonable expectation that the violation would recur. Turning to the
merits of complainant's claims, the agency found that complainant had
shown that he belongs to the above protected groups, and was subjected to
adverse actions in claims 1 and 3, but that he had failed to show that
similarly situated employees, not of his protected groups, were treated
more favorably. Management officials testified in their affidavits that
although other employees also made errors when processing Express Mail,
none had made as many errors as complainant, a longtime agency employee.
As such, his prima facie cases of race and color discrimination were
not established. The agency further found that complainant had not
shown that his physical conditions substantially limited one or more
major life activities. The agency noted that complainant had refused
to provide medical information to the EEO Investigator which would
support his claim. In the absence of evidence in support of his claim,
the agency found that complainant failed to establish a prima facie case
of disability discrimination.
However, assuming complainant had established his prima facie cases
on all three bases, the agency found that it had provided legitimate,
nondiscriminatory reasons for its actions. Regarding claim 1, Postmaster S
testified that complainant had a high error rate when scanning the Express
Mail, and had been counseled on this issue before.1 Regarding claim 2,
Postmaster R testified that he did not "verbally assault" complainant,
but rather on one of the dates in question, had asked him to perform a
different work task than that which he was currently performing. As to
claim 3, both Postmasters R and S testified that the Notice of Proposed
Removal was the next step in progressive discipline for complainant's
work infractions. The agency found that complainant had not shown
the agency's reasons to be pretext for discrimination. It also found
that complainant had not shown that the agency's actions amounted to
discriminatory harassment in that he had not shown that the actions
were severe or pervasive such that a hostile work environment existed.
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions in support of his appeal.
The agency did not submit any contentions in opposition to the appeal.
ANALYSIS AND FINDINGS
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").
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). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We note that for the purposes of analysis, we assume, without finding
such, that complainant is an individual with a disability. Even given
this assumption, and assuming complainant has established his prima
facie cases on the bases of race and color, we find that the agency's
analysis that it provided legitimate, nondiscriminatory reasons for its
actions, and that complainant did not show those reasons to be pretext
for discrimination, was correct. For claim 1, the agency noted that
complainant had a high error rate when scanning Express Mail, for which he
had received previous instruction to correct, and which did not improve.
Complainant did not prove that his error rate was not as the agency
claimed. For claim 2, the incidents of May 15, 17, and 18, as described
by complainant, do not demonstrate that complainant was subjected to a
hostile or threatening workplace. Rather, those incidents demonstrate
disagreements between a manager and employee over work assignments and
the method of performing work, which were exacerbated by complainant's
actions.
Regarding claim 3, the Notice of Removal stemmed from the incidents of
May 15, 17, and 18. The Notice of Proposed Removal details the charges
for Failure to Follow Instructions, Failure to Be Gainfully Employed, and
Causing a Disruption on the Workroom Floor. According to Postmaster R, on
May 15, 2006, complainant failed to follow his instructions regarding the
express mail scanning procedures, the procedures for the "red room cage"
and those for transferring the keys to the "red room cage" to another
employee, all of which compromised the security of registered mail.
Complainant left work that day complaining that Postmaster R had given him
a migraine headache. Upon his return to the facility May 17, complainant
was asked for doctor's excuse. Complainant asked for a witness to the
exchange, and walked away from Postmaster R, while making a cell phone
call. Because he made a personal call while on agency time, he was
charged with Failure to be Gainfully Employed. Complainant had called
911, claiming that he was being harassed and threatened. The charge of
Causing a Disruption on the Work Room Floor was a result of the call to
911 and the police arriving at the facility to investigate the claims
of complainant.2
Our careful review of the record shows that complainant has presented
no evidence that the agency's actions were motivated by his race, color
or claimed physical conditions.
CONCLUSION
After a thorough review of the record, and in absence of specific
arguments submitted by the parties in support of or in opposition
to the appeal, we find that the agency's conclusion that complainant
has not shown that he was discriminated against based on race, color,
and disability was correct, and we AFFIRM the agency's finding of no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 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 (S0408)
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 (Z1008)
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
___02/16/10_______________
Date
1 Under well-established Commission precedent, an agency should not
dismiss any claim as moot when the complainant has requested compensatory
damages as relief, which complainant here has done. As the agency went
on to analyze claim 1 on the merits, we find that the proposed dismissal
was harmless error, although the agency is cautioned to be mindful of
our previous case law.
2 The Notice of Proposed Removal was reduced to a 30 day, no time off
suspension as a result of a grievance filed by complainant. We note
that complainant was also the president of his union Local.
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0120072887
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072887