0120080704
12-17-2009
Victor Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Victor Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120080704
Hearing No. 480-2006-00268X
Agency Nos. 4F-913-0041-06; 4F-913-0075-05; 4F-913-0122-06
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
October 19, 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., 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
order.
ISSUES PRESENTED
Whether the AJ's findings that complainant did not establish that his
Emergency Placement in an Off-Duty Status and subsequent termination
were discriminatory, are supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a letter carrier at the Palmdale, California Post Office. Complainant
filed EEO complaints on October 12, 2005, March 6, 2006 and August 16,
2006 (which were consolidated), alleging that he was discriminated
against on the bases of race (Black), disability (on-the-job foot
injury/bilateral plantar fasciitis), and reprisal for prior protected
EEO activity [arising under Title VII and Rehabilitation Act] when:
(1) on or about June 14, 2005 through July 16, 2005, he was subjected
to a hostile work environment; 1
(2) in December 2005, he was continually scheduled to start later than
other carriers, preventing him from being more proficient on the job;
(3) he was issued a 14-day suspension on December 28, 2005;
(4) on February 4 through 22, and April 10, 2005, the agency refused to
comply with his medical restrictions; 2
(5) he was issued a 14-day suspension on February 7, 2006;
(6) he was placed on administrative leave on February 23, 2006, and as
of March 22, 2006 had not received documentation regarding the action
and his pay was delayed during this period;
(7) he was issued instructions for a fitness-for-duty exam on March 15,
2006;
(8) on May 16, 2006, he was denied time on the clock to prepare a response
on an EEO complaint;
(9) on April 12, 2006 and ongoing, as a senior PTF, he was not assigned
to work more than eight hours a day or 40 hours a week;
(10) on May 3, 2006, he was verbally threatened by a 204B by being told
he was the stupidest and dumbest black employee;
(11) on June 2, 2006, he was issued a notice of emergency suspension; and
(12) on July 20, 2006, he was issued a notice of removal dated July 14,
2006.
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 and the AJ held a hearing July 11, 2007 and issued
a decision on October 2, 2007.
AJ Decision
At the outset, the AJ, among other things, found that complainant was
not an individual with a disability as he did not show that he was
substantially limited in any major life activity. The AJ did find,
however, that complainant had established a prima facie case of reprisal
discrimination, noting, in part, that complainant had prior EEO activity,3
about which management was aware. Addressing issue (1), the AJ found
that complainant did not establish that management's alleged conduct
was motivated by his race or prior EEO activity.
The AJ found as to issue (2), that complainant was the only PTF who
never started before 9 a.m., but since there were other Black PTFs who
started early, one of whom had the same seniority date as complainant,
there was no reason to conclude that his start time was based on race.
Thus, the AJ found no prima facie case based on race. Furthermore, the
AJ did not find complainant to be aggrieved in that the record showed
he worked more than 40 hours per week during this period. Additionally,
the AJ noted that although complainant argued that his later start time
prevented him from becoming more proficient in his job, no evidence was
presented to support that assertion. The AJ also found no evidence of
a retaliatory motive.
Addressing issue (3), the AJ found that on December 28, 2005, a temporary
204B supervisor issued a 14-day no-time-off suspension to complainant,
charging him with Failure to Follow Instructions/Unacceptable Conduct
based on an incident that took place on December 22, 2005. According
to the 204B, on that day, he gave complainant an instruction to which
complainant replied that he was just a 204B, not a supervisor. The AJ
found that complainant then yelled across the room that the 204B could
not tell him what to do. Another carrier (Hispanic), told complainant to
follow management's instructions, which complainant did. Complainant then
went to the carrier's case and called the Hispanic carrier an "asshole."
The AJ noted that in complainant's version of the events, the 204B said
to him, "Just because some people wear the uniform doesn't make them a
mailman." Complainant stated that he responded by telling the 204B that
because of his hostile actions, some "asshole" had just demeaned him.
He denied refusing to follow instructions. However, the AJ found no
evidence that the agency disciplined complainant because of unlawful
motives.
As to issue (4), the AJ found that this claim constituted an impermissible
collateral attack on the Department of Labor's workers' compensation
determination, and was subject to dismissal.
As to issue (5), the AJ found that on February 7, 2006, complainant was
issued a 14-day suspension for expanded street time and demonstrated poor
performance on February 3, 2006. Among other things, a supervisor (S2)
cited the fact that complainant said he took a 30-minute lunch break and
a 10-minute break contrary to instructions that employees scheduled to
work fewer than six hours, as complainant was, were not to take a lunch
break. Complainant was only given 1.75 hours of deliveries that day.
The AJ found that complainant did not establish pretext as to this
issue.
As to issues (6) and (7), the AJ found that P1 placed complainant
on administrative leave on February 23, 2006, pending a fitness for
duty examination (FFD), because of what he described as complainant's
"bizarre" behavior. Complainant returned to duty on April 10, 2006.
The union filed a grievance on complainant's behalf because he was not
properly paid for the time he was off, and that grievance was resolved by
ordering that he be fully paid. The AJ further found that, on March 14,
2006, complainant was issued a notice that he was scheduled for an FFD
exam on March 27, to determine the status of his psychiatric condition.
On April 6, the agency's Medical Consultant summarized the results of
the FFD exam, stating that complainant's workplace conflicts were found
to be of a non-medical nature and should be resolved administratively.
He released complainant to return to work without restrictions. The AJ
found no evidence of discrimination.
As to issue (8), the AJ found no discrimination with regard to
complainant's claim that, on May 16, 2006, he was denied time on the
clock to prepare a response to an EEO complaint.
As to issue (9), complainant alleged that on April 12, 2006 and ongoing,
as a senior PTF, he was not assigned to work more than eight hours per day
or 40 hours per week. The AJ found that complainant and another carrier
(C1) have the same seniority date and are junior to all but one PTF.
The AJ noted that, as a PTF, complainant is not guaranteed 40 hours per
week or 8 hours per day. Although the record indicates that complainant
worked the least number of hours and least amount of overtime of the
PTFs in his pay location for the period of April 10 to June 16, 2006,
the AJ found, however, that during this period complainant's doctor
restricted him from walking more than four hours per day and complainant
stated that he may have declined some overtime.
Addressing issue (10), the AJ noted complainant's allegation that he was
told by S1 that he was the "stupidest" and "dumbest black employee." On
that day, complainant said he took six hours to deliver a two-hour route.
When he returned to the office he told S1 that he got lost on the route
and that his vehicle was defective. He also indicated that his doctor
authorized him to walk slowly. According to complainant, S1 became angry
and called him names. The AJ noted that S1 denied making the comments.
He maintained that complainant had taken four hours to deliver a one-hour
route and that when he returned to the office, he told complainant that
his performance was very poor for a carrier with 25 years of experience.
Complainant's response, according to S1, was to whistle and walk away.
The AJ found that, given the fact that there were no witnesses to this
incident, complainant was unable to establish discrimination.
As to issue (11), S1 issued an Emergency Placement in Off-Duty Status
to complainant, confirming the oral instructions given to him on May 30
that he was being placed in the status without pay. The AJ noted that
the reason given for the agency's action was that a customer complained
that complainant had demonstrated unacceptable conduct toward her
minor daughter while in the performance of his duties. Complainant was
advised that his actions appeared to have violated postal policies and
procedures regarding unacceptable conduct. The notice further stated,
"It is believed that retaining you in a duty status could result in injury
to yourself or others." P1 concurred in the decision. S1 stated that he
had never placed another employee in an emergency off-duty status under
similar circumstances. The AJ found no evidence of a discriminatory
motive.
As to issue (12), the AJ found that on July 14, 2006, S1 issued a
Notice of Removal to complainant, charging him with "Failure to Follow
Instructions/Unacceptable Conduct." Complainant was specifically charged
with violating Section 665.16 of the Employee and Labor Relations Manual
(ELM) relating to Unacceptable Conduct, citing his conduct toward the
minor female. S1 then cited complainant's responses to the charges
given during an investigative interview (also known as a fact-finding),
stating, "Your responses are unacceptable and fail to provide a reasonable
explanation for your conduct. Your actions in this regard constitute
extremely egregious conduct and warrant your removal from the Postal
Service." S1 noted that the minor female was 17 and complainant was
48 years old and that complainant gave the minor a card that had sexual
overtones.
The AJ found that, in attempting to establish pretext, complainant focused
on his good intentions in bringing the gifts to the minor girl, and his
belief that he was friends with her family. The AJ found, however, that
the agency was simply responding to the complaints of the postal customers
and their statements that complainant's behavior was not welcome and
that he had been put on notice previously to stay away from the daughter.
The AJ found the agency had a good faith belief that complainant had acted
improperly based on the minor female's parents' statements and the words
written on the cards, which complainant did not deny. The AJ found that
complainant failed to establish, by a preponderance of the evidence, that
the agency removed him in retaliation for his prior EEO complaints.
The agency subsequently issued a final order adopting all of the AJ's
finding that complainant failed to prove that he was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant mostly reiterated his version of some of the facts
concerning the incident with the minor female involved in his Emergency
Placement in Off-Duty Status and his termination, i.e., issues (11)
and (12). He did not specifically challenge the AJ's findings of no
discrimination concerning issues (1) - (10).
In reply, the agency asserts that complainant has offered no new facts or
legal argument that justify overturning the findings or decision issued
by the AJ. The agency therefore requests that the Commission uphold the
final order and issue a finding of no discrimination or retaliation in
favor of the agency.
ANALYSIS AND FINDINGS
We note that the Commission has the discretion to review only those
issues specifically raised in an appeal. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999).
Given that complainant is only contesting the AJ's findings with regard
to his emergency placement in an off-duty status and his termination,
we will only address issues (11) and (12) in the decision herein.
Accordingly, the agency's findings of no discrimination regarding issues
(1)-(10) are AFFIRMED.
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,
� VI.B. (November 9, 1999).
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII or
Rehabilitation Act case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). First, complainant
must establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination; i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate
reason(s) proffered by the agency was a pretext for discrimination.
Id. at 256.
Here, assuming complainant could establish a prima facie case of
discrimination based on race, disability and/or reprisal as to issues
(11) and (12), the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, it was management's belief,
based on information provided by a postal customer, that complainant
had inappropriate interactions with a minor female while on duty.
Management also noted that regardless of his intentions, complainant
had been warned previously to stay away from the girl. On appeal,
complainant, for the most part, argued that S1 and P1 were not credible
with respect to certain aspects of their testimony regarding their
interview of the minor's parents;4 that the family did not testify at
the hearing and that there was no evidence that the family had filed a
complaint or were requesting that he be fired; that the local police or
postal inspectors were not notified of his actions; that he did not know
the age of the minor; and that the agency used his gift to the minor as a
means to retaliate and terminate him. Upon review of the record, we find
that there is substantial evidence in support of the AJ's conclusion that
complainant did not establish pretext. As noted by the AJ, complainant
does not deny that he engaged in the conduct at issue nor did he provide
evidence of similarly situated individuals from outside of his protected
groups who were treated differently after engaging in similar conduct.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
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
_____12/17/09_____________
Date
1 Specifically, complainant alleged that on either June 14 or 21, 2005,
his supervisor (S1) was upset because he yelled at her and allegedly
threatened to have her job, and as a result she told the Postmaster (P1)
in front of others that she did not want to be alone with complainant.
Complainant considered that to be a humiliating statement and a
personal attack on him. Complainant also alleged that on July 7,
he was issued a 14-day suspension based on incidents on June 14, 15,
16, and 17, in which he allegedly failed to follow S1's instructions
and raised his voice and yelled at S1. Complainant states that, on
July 12, he was issued a Letter of Warning for failing to deliver an
express mail package. Complainant stated that he called in from the
street that day to ask for assistance because his feet were very sore.
A casual was sent out to finish his deliveries and complainant did not
notice that he had an express mail package. In addition, on July 16,
complainant was issued a 7-day suspension for incurring 28 minutes of
penalty overtime. Management stated that complainant called in from the
street to ask for an additional one hour and 10 minutes, and that time
was authorized, however, he then used another 28 unauthorized minutes,
which put him into penalty overtime.
2 Complainant essentially asserts that although his medical documentation
indicated that he could not walk as quickly as the other carriers due
to his on-the-job injury, he was still expected to do so.
3 The AJ noted that complainant had filed approximately 183-EEO actions
prior to those which are the subject of this decision, most of which
were informal complaints filed in 1992. AJ Decision at 11.
4 According to complainant, P1 testified that he was unaware that
complainant was the carrier who had given the gift to the minor when he
interviewed her parents. Complainant stated that S1, who was present
during the interview, stated that he and P1 were aware that complainant
was the carrier. Complainant maintained that P1 was "targeting" him.
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0120080704
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120080704