0320110002
01-12-2012
Vincent E. Johnson, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Vincent E. Johnson,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Petition No. 0320110002
MSPB No. AT-0752-10-0142-I-1
DECISION
On October 1, 2010, Petitioner filed a timely petition with the Equal
Employment Opportunity Commission seeking review of a final order issued
by the Merit Systems Protection Board (MSPB) concerning his claim of
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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect
to Petitioner’s allegation of discrimination, constitutes a correct
interpretation of any applicable law, rule, regulation, or policy
directive, and is supported by the evidence in the record as a whole.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked
as a Mail Processing Clerk at the Agency’s Processing and Distribution
Center in Florence, South Carolina.
On November 3, 2009, the Supervisor, Distribution Operations (S1) issued
Petitioner a notice of proposed removal for unsatisfactory attendance.
The notice cited seven unscheduled absences1 from September 2, 2009
to October 21, 2009: (a) 16 hours on September 2-3; (b) 16 hours on
September 8-9; (c) 8 hours on September 11; (d) 80 hours on September
17-30; (e) 40 hours on October 6-12; (f) 7.68 hours on October 13; and
(g) 48 hours on October 14-21. In addition, the notice stated that the
Agency had considered Petitioner’s prior discipline for unsatisfactory
attendance, which included a letter of warning issued on April 14, 2008,
a 7-day notice of suspension issued on July 24, 2008, and a 14-day
notice of suspension issued on September 4, 2009.2 On November 16,
2009, the Plant Manager (P1) issued a decision to remove Petitioner,
effective December 3, 2009.
In an appeal filed with the MSPB, Petitioner alleged that the Agency
discriminated against him on the bases of sex (male), age (46), reprisal
(prior non-EEO activity),3 and veteran’s status when he was removed
from his position. On February 17, 2010, following a hearing, an MSPB
Administrative Judge (MSPB AJ) issued an initial decision sustaining
the unsatisfactory attendance charge, finding no discrimination, and
upholding the Agency’s removal action.4
Regarding the unsatisfactory attendance charge, the MSPB AJ found that
it was uncontroverted that Petitioner was absent and that the absences
were unscheduled on occurrences (a)-(f).5 In addition, the MSPB AJ
cited testimony from S1, P1, and the Leave and Control Manager (L1) that
any three occurrences within a nine month period following the prior
discipline would warrant additional progressive discipline (the three
occurrence rule). Further, the MSPB AJ found that Petitioner had received
prior discipline for unsatisfactory attendance, as stated in the notice
of proposed removal. The MSPB AJ specifically noted that Petitioner’s
14-day notice of suspension advised Petitioner that continued unscheduled
absences would be used for further discipline up to and including removal.
Regarding the issue of discrimination, the MSPB AJ found that Petitioner
had failed to prove, by preponderant evidence, that the Agency’s
removal was based on his sex, age, reprisal, or veteran’s status.
The MSPB AJ noted that Petitioner had “essentially abandoned” his
age, reprisal, and veteran’s status claims by presenting little or no
supporting evidence. In contrast, the MSPB AJ noted that Petitioner had
“aggressively pursued” his sex discrimination claim at the hearing.
Regarding the issue of sex discrimination, the MSPB AJ noted
Petitioner’s assertion that S1 removed him because he rejected her
sexual advances. First, the MSPB AJ found that it was more likely than
not that the alleged sexual advances did not occur. In so finding,
the MSPB AJ credited the testimony of D1 and S1 over the testimony of
Petitioner on the matter. Second, the MSPB AJ found that Petitioner
failed to show that the Agency’s articulated reason for his removal,
his repeated failure to appear for work on a reliable basis, was a
pretext for sex discrimination.
Petitioner filed a petition for review by the full Board, but his petition
was denied. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In his petition,6 Petitioner asserted that the MSPB AJ erred in finding no
discrimination because S1 retaliated against him for refusing her sexual
advances and D1 treated him differently from Caucasian employees due to
prejudice against African-Americans. In addition, Petitioner argued that
S1 and D1 were not credible witnesses because their hearing testimony
contradicted the testimony or written statements of other witnesses.
Further, Petitioner argued that the hearing was tainted because, prior
to the hearing, the Agency’s witnesses met to discuss his case and were
coached on their responses. Moreover, Petitioner disputed the existence
of the Agency’s three occurrence rule and argued that attendance issues
do not warrant removal. Finally, Petitioner maintained that his absence
on occurrence (g) was scheduled.7
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. § 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
Race, Reprisal, Veteran’s Status, and Age Discrimination
As an initial matter, we note that Petitioner alleged in his petition that
the Agency discriminated against him on the basis of race. According to
the MSPB AJ’s January 20, 2010 summary of the telephonic prehearing
conference, however, race discrimination was not one of the issues in
Petitioner’s appeal. As Petitioner did not properly raise his race
discrimination claim before the MSPB AJ, we decline to address it herein.
In addition, we note that the Commission has no authority to review
Petitioner’s claim of reprisal discrimination for prior NLRB and OSHA
activity. In order for the Commission to review a claim of reprisal,
Petitioner must allege that he was removed for engaging in protected EEO
activity. See 29 C.F.R. § 1614.101(b). Protected activity consists of
opposition to discrimination or participation in the statutory complaint
process. See EEOC Compliance Manual Section 8, “Retaliation,”
No. 915.003, § 8-I.A. (May 20, 1998). Here, Petitioner did not allege
retaliation for any prior protected EEO activity, but instead alleged
retaliation for prior NLRB and OSHA activity.
Further, we note that the Commission has no authority to review
Petitioner’s veteran’s status discrimination claim. The Commission
has repeatedly held that, to the extent that a claim is based on
veteran’s status or preference, it does not come within the purview
of the 29 C.F.R. Part 1614 EEO complaint process. See Devereaux
v. U.S. Postal Serv., EEOC Request No. 05960869 (Apr. 24, 1997); Rowe
v. Dep’t of Commerce, EEOC Appeal No. 0120073252 (Oct. 11, 2007).
Finally, we agree with the MSPB’s decision that Petitioner failed to
establish that the Agency removed him because of his age. We note that
Petitioner did not mention his age discrimination claim in his petition.
In addition, the record contains no evidence that S1 or D1 was motivated
by discriminatory animus towards Petitioner’s age.
Sexual Harassment
In order to establish a claim of sexual harassment, a petitioner
must prove, by a preponderance of the evidence, the existence of five
elements: (1) that he is a member of a statutorily protected class;
(2) that he was subjected to unwelcome conduct related to his sex; (3)
that the harassment complained of was based on his sex; (4) that the
harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
Upon review of the record, we concur with the MSPB’s decision that
Petitioner failed to establish that the Agency removed him because he
refused S1’s sexual advances. In finding that the alleged sexual
advances did not occur, the MSPB AJ credited the testimony of S1 and D1.
While Petitioner argued that S1 and D1 were not credible because their
testimony (on other matters) conflicted with that of other witnesses,
we defer to the MSPB AJ’s credibility determinations regarding the
testimony of S1 and D1 on the alleged sexual advances.8 The MSPB
AJ had the opportunity to observe the witnesses during the hearing
and subsequently made credibility determinations. As there is no
objective documentary evidence to contradict the MSPB AJ’s credibility
determinations, we decline to substitute our own judgment for that of
the MSPB AJ with respect to the issue of credibility. See EEO MD-110,
at Ch. 9, § VI.B. Regarding Petitioner’s argument that the hearing
was tainted, we find that Petitioner provided no evidence, beyond his
bare assertions, that the Agency’s witnesses discussed his case or
received coaching prior to the hearing.
The undisputed record reflects that Petitioner had unscheduled absences on
six of the seven occurrences (a-f) cited in his November 3, 2009 notice
of proposed removal. In addition, the undisputed record reflects that,
at the time of his removal, Petitioner had previous attendance issues
as reflected in a letter of warning issued on April 14, 2008, a 7-day
notice of suspension issued on July 24, 2008, and a 14-day notice of
suspension issued on September 4, 2009. While Petitioner may believe that
attendance issues do not warrant removal, ELM 665.41 states, “Employees
are required to be regular in attendance. Failure to be regular in
attendance may result in disciplinary action, including removal from
the Postal Service.” Accordingly, we agree with the MSPB’s decision
that Petitioner failed to establish that his removal was discriminatory.
CONCLUSION
Based upon a thorough review of the record, it is the decision of
the Commission to CONCUR with the final decision of the MSPB finding
no discrimination. The Commission finds that the MSPB's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. You have the
right to file a civil action in an appropriate United States District
Court, based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
___1/12/12_______________
Date
1 According to Employee and Labor Relations Manual (ELM) 511.41,
unscheduled absences are “any absences from work that are not requested
and approved in advance.”
2 The 7-day notice of suspension cited ten unscheduled absences from May
to July 2008. The 14-day notice of suspension cited five unscheduled
absences from June to August 2009.
3 Petitioner alleged that he was retaliated against for his prior
National Labor Relations Board (NLRB) and Occupational Safety and Health
Administration (OSHA) activity.
4 The MSPB AJ’s January 20, 2010 summary of the telephonic prehearing
conference stated that the parties agreed that the only issues of
discrimination in the appeal involved sex, age, reprisal (NLRB and OSHA),
and veteran’s status. In addition, the summary stated that additional
issues would not be entertained in the appeal unless a party showed
good cause.
5 The MSPB AJ found that Petitioner’s absence on occurrence (g)
was scheduled and declined to sustain this specification. The MSPB
AJ, however, found that the unsatisfactory attendance charge could be
sustained even though all of the factual specifications had not been
sustained.
6 Petitioner submitted 15 additional statements between November 2010 and
November 2011. The Commission’s regulations, however, do not provide
for additional submissions on a petition for review. See 29 C.F.R. §§
1614.303 and 1614.304. Accordingly, we decline to consider Petitioner’s
additional statements.
7 We remind Petitioner that the MSPB AJ had found occurrence (g) to be
a scheduled absence.
8 An Administrative Judge’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 Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9,
§ VI.B. (Nov. 9, 1999).
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0320110002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110002