Kenneth Simmons, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionMar 30, 2012
0120103309 (E.E.O.C. Mar. 30, 2012)

0120103309

03-30-2012

Kenneth Simmons, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.




Kenneth Simmons,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120103309

Hearing No. 410-2010-00026X

Agency No. 4H-310-0046-09

DECISION

On August 12, 2010, Complainant filed an appeal from the Agency’s August

6, 2010, final order 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. The Commission deems the appeal timely and accepts it for

de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following

reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Prior to and at the time of events giving rise to this complaint,

Complainant worked as a Custodial Laborer at the Agency’s Post Office

in Columbus, Georgia. He had engaged in prior protected activity

of which his then supervisors were aware. He also sustained a back

injury in 2008, and as a result, had significant physical restrictions.

His OWCP claim was initially denied as was his request for light duty,

but once his OWCP claim was accepted, he was provided with limited duty.

After returning to work, he was warned about errors he was making on

his timesheet. Specifically, Complainant was double counting time

he spent “cleaning” and “policing” the lobby, and management

directed him to stop doing so. When he continued to do it, he received

a Letter of Warning.

On June 9, 2009, Complainant filed (and subsequently amended) an EEO

complaint alleging that the Agency discriminated against him on the

bases of race (African-American) and in reprisal for prior protected

EEO activity when:

1. on March 4, 2009, he was denied a light duty request; and

2. on May 14, 2009 he was issued an Investigative Interview for poor work

performance and subsequently on June 1, 2009, he received a Letter of

Warning (LOW).

Complainant also alleged that from March 2009 on, management was

subjecting him to a hostile work environment. At the conclusion of the

investigation, the Agency provided Complainant 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.

Over Complainant's objections, the AJ assigned to the case granted the

Agency’s February 4, 2010 motion for a decision without a hearing and

issued a decision on July 29, 2010.

The AJ concluded that the only prima facie burden complainant met

was on the basis of reprisal with regard to the LOW, but the AJ

found it undisputed that Complainant was incorrectly filling out his

timesheet even after he had been warned not to do so. The AJ stated

that Complainant should not have assumed he would be exempt from

discipline simply because he had engaged in prior protected activity.

With regard to the light duty, Complainant’s restrictions were quite

significant and there was no available work within them. The AJ found

Complainant’s comparators not to be similarly situated because there

was no evidence that their restrictions were as severe and only one was

a laborer custodian while the others were an automotive technician and a

tractor trailer operator. The AJ found the only other incident of the

alleged hostile work environment involved Complainant being admonished

by his supervisor for stopping in the hallway to talk to a coworker for

more time than the supervisor thought appropriate. The AJ concluded that

these incidents, taken together in the context in which they occurred,

were insufficiently severe and insufficiently pervasive to render the

work environment hostile.1 The AJ concluded:

The evidence shows, at most, that Complainant had ongoing differences

with his superiors concerning the quality of his performance. Those

differences caused Complainant to engage in protected EEO activity and

the differences continued after the EEO activity was initiated.

AJ Decision, Complaint File at 30. The Agency subsequently issued a

final order adopting the AJ’s finding that Complainant failed to prove

that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive legal

and evidentiary standards that apply to the case, there exists no genuine

issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). In ruling on a motion for summary judgment, a court’s

function is not to weigh the evidence but rather to determine whether

there are genuine issues for trial. Id. at 249. The evidence of the

non-moving party must be believed at the summary judgment stage and all

justifiable inferences must be drawn in the non-moving party’s favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case.

Upon review of the record, we note that the AJ properly drew justifiable

inferences in Complainant’s favor but correctly concluded that there

were no genuine issues for trial. For example, the AJ acknowledged

affidavit testimony from Complainant’s witnesses that one of the

supervisors, who had been named in Complainant’s prior complaints,

made comments suggesting that he was “out to get’ Complainant.

In addition, there was some confusion as to how Complainant was supposed

to record his time while on limited duty. However, ultimately there was

no dispute that he repeatedly overstated the amount of work he performed

after he had been warned not to do so. Finally, we agree with the AJ

that Complainant failed to adduce evidence that he was subjected to

conduct that was either so severe or so pervasive that a “reasonable

person” in complainant’s position would have found the conduct to

be hostile or abusive. For these reasons, we discern no basis on which

to disturb the AJ’s decision.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s

final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 (S0610)

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 (Z0610)

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

March 30, 2012

__________________

Date

1 The AJ noted that when Complainant complained about the harassment,

he was assigned to a different supervisor.

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0120103309

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120103309