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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