0120102331
09-16-2010
William J. Gamache, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
William J. Gamache,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120102331
Agency No. 4B-030-0023-09
DECISION
On May 6, 2010, Complainant filed an appeal from the Agency's March 30, 2010, final decision 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 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales and Service Associate at the Agency's Post Office facility in Merrimack, New Hampshire. On September 21, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (White), sex (male), disability (prostate, migraine, stress, panic attacks and depression), and reprisal for prior protected EEO activity when:
1. On June 9, 2009, Complainant's request for sick leave under the Family Medical Leave Act (FMLA) was denied;
2. On June 5, 2009, Complainant was subjected to harassment. In support of his claim of harassment, Complainant indicated that the following events occurred:
a. Complainant alleged that he was harassed about taking leave for doctor's appointments;
b. Since June 5, 2009, his supervisor (Supervisor) displayed what Complainant deemed were inappropriate pictures of a male country music singer;1 and
c. Since June 5, 2009, the Supervisor carried a shopping bag displaying what Complainant believed was an inappropriate picture. 2
3. On August 17, 2009, Complainant was charged with Leave Without Pay (LWOP); and
4. On August 24, 2009, Complainant received a Letter of Warning (LOW).
The Agency accepted claims (1), (3) and (4) for investigation. The Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim of harassment. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision initially dismissed claims (1), (3), and (4) pursuant 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that in claims (1) and (3), Complainant was provided with leave on June 9, 2009, and his LWOP was changed to leave for August 17, 2009. As to claim (4), the Agency noted that, pursuant to a grievance, the LOW was reduced to an official discussion. As such, the Agency determined that claim (4), too, should be dismissed. Assuming Complainant stated a viable claim of discrimination with respect to claims (1), (3), and (4), the Agency found that management witnesses provided legitimate, nondiscriminatory reasons for the disputed actions. The Agency also held that Complainant failed to show that those proffered reasons were pretext for discrimination. Therefore, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed asserting that he has been harassed by the Supervisor regarding his requests for leave. Complainant emphasized the fact that the LOW was reduced and asserted it was because it was based on false evidence by the Supervisor. Finally, Complainant claimed that the investigation was inadequate. The Agency requested that we affirm its final decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Claim (1)
In claim (1), Complainant asserted that he was denied his requested leave under FMLA. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dept. of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Upon review of the record, we find that issue surrounding the denial and processing of his FMLA leave request constitutes a collateral attack on the FMLA process. The Commission notes that the FMLA process falls under the regulatory ambit of the Department of Labor, not the Commission. Moreover, we note that Complainant was, in fact, granted leave for the date in question. As such, we affirm the Agency's final decision's dismissal of claim (1).
Claim (2)
The Agency also dismissed claim (2) prior to the investigation. Complainant appealed noting that he alleged that he was subjected to harassment. Therefore, the Commission interprets Complainant's appeal to include an appeal of the Agency's dismissal of his claim of harassment. As noted above, the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly found that a complainant may assert a Title VII cause of action if the alleged discriminatory conduct, when considered together and assumed to be true, was so severe or pervasive that it created a work environment abusive to the employee because of race, gender, religion, or national origin. Rideout v. Dept. of the Army, EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). Upon review of the record, we find that Complainant failed to allege events which, when taken as a whole, were sufficiently severe or pervasive enough to state a viable claim of harassment. As such, we affirm the Agency's decision to dismiss claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1).
Claims (3) and (4)
We note that the Agency's final decision dismissed these claims procedurally as well as addressed the issue of whether Complainant was subjected to discrimination as alleged in claims (3) and (4).3 As such, we need not address the procedural dismissal of the claims and solely review the merits of Complainant's claims of discrimination.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dept. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dept. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dept. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).4
Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As to claim (3), the Supervisor averred that Complainant had requested "Court leave" for the whole day on August 17, 2009. When Complainant provided the Supervisor with the court papers, the Supervisor learned that Complainant was at the court for four and a half hours, not the full work day. As such, she informed Complainant that he needed to provided a leave slip for the remaining three and a half hours. The Supervisor charged Complainant with LWOP which was corrected once Complainant provided the appropriate leave request. As for claim (4), the Supervisor stated that she received a customer complaint on July 23, 2009, and spoke to Complainant about the incident on the same day. She noted that Complainant did not deny the incident but merely stated he believed it was a "private conversation." The Supervisor indicated that this was not the first time she had to speak to Complainant about his conduct while working with customers. As such, the Supervisor issued the LOW to Complainant.
Finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to show that the Agency's reasons were pretext for discrimination. After a review of the record, the Commission finds that Complainant has failed to establish that the Agency's reasons were pretext for discrimination. Accordingly, we conclude that Complainant has not established that the Agency discriminated against him as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
September 16, 2010
__________________
Date
1 The record indicates that the Supervisor had fan pictures of herself and her daughter with country singer Keith Urban, as well as a poster of him, in which he is fully clothed, including wearing a jacket.
2 The Supervisor indicated that she carried her lunch and other personal belongings in an Abercrombie & Fitch shopping bag.
3 We note that the Agency dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim finding that the issues had been resolved. However, the Commission reminds the Agency that it should have analyzed these claims for mootness pursuant to 29 C.F.R. � 1614.107(a)(5).
4 For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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0120102331
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102331