0120102716
10-14-2010
Steven M. Kelley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Steven M. Kelley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102716
Hearing No. 443-2008-00154X
Agency No. 1E-554-0008-08
DECISION
On June 1, 2010, Complainant filed an appeal from the Agency's April 28, 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 pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether there is substantial evidence in the record to support the AJ's finding that Complainant was not subjected to discrimination and harassment based on race, color and reprisal with regard to overtime opportunities, an investigation of his computer usage and his work assignment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Mail Processing Clerk, PS-5, at the Agency's Processing and Distribution Center in Minneapolis, Minnesota. On May 15, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black) and reprisal for prior protected EEO activity [under Title VII] when:
1) since on or about November 21, 2006, he has been harassed by a co-worker;
2) from February 2007, to September 2007, he was denied overtime opportunities;
3) in August 2007, the Supervisor (S1) called the hospital to find out when he would return to work; and
4) from October 2007 to present he has been denied overtime opportunities.
The Agency initially dismissed issues (1) through (3) of the complaint and accepted issue (4) for investigation on or about May 21, 2008. On June 26, 2008, Complainant requested that his complaint be amended to include allegations of discrimination based on race, when: on or about May 22, 2008, he was told by S1 that he was the only African-American employee being investigated about his computer usage, and; Management has repeatedly sought out African-American employees to be targeted for disciplinary actions.
The Agency accepted Complainant's amended issues as issue numbers (5) and (6). On July 1, 2009, the Agency dismissed issues (5) and (6) on the grounds of failure to state a claim. 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 and after ruling on motions concerning which issues were properly before her, the AJ held a hearing on May 20, 2009. The AJ issued a decision on April 21, 2010, finding no discrimination.
AJ Decision
Based on the motions and oral arguments presented to her, the AJ defined the issues before her as follows:
(1) from October 2007 to the present, Complainant has been denied overtime opportunities;
(2) on or about May 22, 2008, Complainant was told by S1 that he was the only African-American employee being investigated regarding his computer usage; and,
(3) on January 29, 2009, Complainant was permanently relieved of his duties in the registry area and was assigned to work on the outside dock area during the remainder of his tour in other departments during the remainder of his tour.
The AJ did not make any findings concerning whether Complainant established a prima facie case of discrimination, noting that regardless, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not prove to be pretext. Specifically, the AJ found regarding the overtime claim, issue (1), that S1 stated he did not give Complainant as much Saturday overtime as another employee outside his protected class because the other employee's bid position was as an expeditor, and pursuant to the union contract when an expeditor was required for overtime the employee who held the expeditor bid position had first priority over all non-expeditor employees, such that the Agency was prohibited from rotating the overtime to other non-expeditor employees.
With regard to issue (3) which concerns the reassignment of Complainant to work outside of the registry department, the AJ found that management indicated that due to a national directive all locations were required to reduce the hours worked in the registry department in preparation for the elimination of many of the positions, and that a restructuring of the mail distribution operation resulted in less mail being processed through the registry department. In addition, registry items that in the past went through Complainant's location were now being routed to the St. Paul hub to be consolidated and sent out in non-surface transportation by truck.
The AJ further noted that in January of 2009, S1 told Complainant that as of January 26, 2009, he was going to be relieved of some of his registry duties, and would only be allowed to work out on the dock doing registry work for three hours. Since January 26, 2009, Complainant's duties have been from 5:00 p.m. until 8:00 p.m. working on the dock accepting registry packages from the trucks, and from 8:00 p.m. until 1:30 a.m. working in the sub-basement which is priority mail. The work on the dock is not actually located in registry mail, but Complainant is still on the registry time clock and performing registry duties by accepting registry articles from the truck drivers. The AJ then noted that other employees still working in registry did not have the same supervisor as Complainant. Moreover, others who are also supervised by S1 were moved out of registry, just like Complainant.
The AJ found no evidence of pretext, noting as to issue (1), that although it was true that there was no specific written policy regarding the assignment of overtime to expeditors, S1 testified that in the past he had settled a grievance with the union regarding a similar situation, and at that time it was his understanding that the union's position was when a general expeditor was needed they were brought in regardless of seniority. In addition, S1 spoke to the union about his allowing Complainant's comparator to work overtime because she was an expeditor, and the union concurred noting that a general expeditor needed to be brought in over a non-expeditor. The AJ found that as such, the record indicates that S1 believed the assignment of overtime to the expeditor was required by the union contract.
Concerning the computer investigation issue, issue (2), the AJ noted the Agency's contention that S1 met with Complainant to discuss his computer usage because of a report indicating that Complainant may have been using the computer inappropriately. The AJ noted that S1 did not ever discipline Complainant concerning these charges.
As to issue (3), the AJ noted that although the evidence indicates that on a few discrete occasions, perhaps as many as seven other employees, who were outside of Complainant's protected classes, were assigned work in the registry when arguably Complainant was available, this alone did not demonstrate pretext. The AJ further noted that the record demonstrates that two other registry employees outside Complainant's protected class were assigned (like Complainant) to different departments in an effort to keep them employed. The AJ found no discrimination.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant makes no new arguments. The Agency maintains that the AJ's findings and conclusions should be upheld.
ANALYSIS AND FINDINGS
Initially, we note that Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9, Sec. IV(A) at p. 9-10 (November 9, 1999) provides that the Commission has the discretion to only review those issues specifically raised on appeal. As Complainant did not, on appeal, object to the definition of the issues (and he also did not object during the hearing), we will not address the dismissals of certain issues in the decision herein. We accept the AJ's definition of the issues before the Commission and now proceed to address them.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Harassment
We begin by addressing issue (2) within a harassment framework. To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994). The AJ's finding of no discrimination is supported by substantial evidence in the record because Complainant has not proven that management's actions were based on his statutorily protected classes. In so finding, we note that in his testimony, Complainant admitted "[S1] didn't say that I was the only black being investigated, no." Hearing Transcript at 81.
Disparate Treatment
The allocation of burdens and order of presentation of proof in a Title VII case alleging disparate treatment discrimination is a three step procedure: complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant has not established a prima facie case of discrimination concerning issue (1), as his comparator, who is not in his protected groups, is not similarly-situated to Complainant. She has a different job title, and is at a different pay level, with a different work schedule. We discern no other evidence from which we can draw an inference of discrimination. Accordingly, the AJ's finding of no discrimination is supported by substantial evidence.
As to issue (3), Complainant has not established a prima facie case of discrimination. Although on some discrete occasions, certain employees were assigned work in the registry when Complainant was not, the issue at hand concerns the permanent reassignment of Complainant in January 2009. Complainant has failed to identify any comparators outside his protected group with the same or less seniority (and with the same supervisor) who were not also sent out to other departments. Further, the Agency has articulated a legitimate, nondiscriminatory reason for reassigning Complainant. The evidence indicates that the directive for all locations was to decrease the registry hours, and, combined with the fact that the mail processing was changed to decrease the flow of mail through the registry, in general the overall work in the registry had decreased. As such, not only Complainant, but at least two other registry employees, were assigned work in other areas of the Agency that needed the help. The AJ's conclusion that pretext was not shown, is supported by substantial evidence in the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.
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
___10/14/10_______________
Date
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0120102716
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102716