0120080172
04-16-2009
Ronald D. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald D. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080172
Agency No. 1G-761-0087-06
Hearing No. 450-2007-00179X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 3, 2007, 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Complainant alleged that the agency
discriminated against him on the bases of race (Caucasian), sex (male),
disability (physical and mental), and age (56) when:
1. He was subjected to continuous harassment from May 30, 2006
through June 28, 2006;
2. On July 2, 2006, he was issued a Letter of Warning; and
3. On an unspecified date he was subjected to harassment and ridicule
from his supervisor and was denied the opportunity to be detailed as a
204(b) supervisor.
Following an investigation by the agency, complainant, an Electronics
Technician at the Amarillo Processing & Distribution facility, requested
a hearing before an Administrative Judge (AJ). After a hearing, the AJ
found that complainant failed to demonstrate that he was discriminated
against. Specifically, the AJ found that complainant failed to establish
a prima facie case of discrimination as to all of his bases. The AJ
then determined that even if he had established a prima facie case of
discrimination, the agency had articulated legitimate nondiscriminatory
reasons for its actions. The agency maintained that complainant was never
subjected to harassment. The agency explained that complainant had not
reacted well to the arrival of a new supervisor for a position that he
had wanted. Further, while the last supervisor was very laid back about
issues, the new supervisor was advised by her supervisor that she should
follow the rules more closely. As such, the supervisor asked complainant
and the other employees to cut down on their conversation between
shifts and to give her advanced notice of when they would be absent.
Complainant, who had a standing medical appointment, failed to comply
with the request regarding leave and as such was charged with Absent
Without Leave (AWOL) and was subsequently issued a Letter of Warning.
Complainant also indicated that the supervisor had winked at him on
several occasions and that he was unable to understand her over the
public announcement (PA) because of her accent. In response, the agency
explained that the supervisor had a dry eye problem and used eye drops
to relieve her condition. The agency indicated that once complainant
asked the supervisor to not wink at him, she stopped. With regard
to understanding the supervisor over the PA system, complainant's
witnesses testified that in addition to the supervisor's accent, not
understanding her was due to poor acoustics and the background noises
from the machines.
With regard to the acting supervisor duties, the agency explained
that complainant was told by his second-line supervisor that he had
to address his attendance problems before he would be allowed to act.
The second-line supervisor also told him that they had to make their
working relationship more trusting. Additionally, the agency indicated
and complainant, through his own testimony agreed, that his supervisor
had not made any racist, ageist, or sexist comments to him. He also
agreed that it was reasonable for the supervisor to want to know when
an employee would be absent. The AJ found that complainant failed to
show that the agency's legitimate nondiscriminatory reasons were pretext
for discrimination. The AJ issued a finding of no discrimination and
the agency agreed to fully implement the finding.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order. The
Commission agrees that even if complainant established a prima facie case
of discrimination as to all bases, the agency had articulated legitimate
nondiscriminatory reasons for its actions as was discussed above which
complainant has failed to prove to be pretext for discrimination.
Finally, the Commission finds that the incidents complained of even
if considered as a whole were not sufficiently severe or pervasive to
establish workplace harassment. Accordingly, we find the Administrative
Judge's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
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
04/16/09
__________________
Date
4
0120080172
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013