0120131312
06-14-2013
Alan Jung, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Alan Jung,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131312
Hearing No. 560-2012-0059X
Agency No. 4J-630-0117-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 28, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Saint Charles, Missouri Post Office.
On June 1, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 22, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the basis of reprisal for prior EEO activity when:
1. on October 20, 2010, he was observed by the Officer-in-Charge (OIC) and told the way in which he was depositing outgoing mail in the collection boxes was a time wasting practice;
2. on December 1, 2010, his request for 20 minutes of overtime was ignored;
3. on December 8, 2010, he was told by a co-worker to watch his back as he heard that Complainant would be fired;
4. on December 18, 2010, the OIC showed up on his route and suggested that he had taken 2 lunches and ate in a different zip code;
5. on January 18, 2011, he was allowed to skip lunch after a month of being made to take lunch;
6. on April 1, 2011, his requested Form 1564-A for his route book to no avail;
7. on May 16, 2011, he was given a Pre-Disciplinary (Pre-D) interview; and
8. on June 20, 2011, his request for 2 hours of overtime was denied.
After the investigation of the instant formal complaint, 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 requested a hearing. By an Order entitled "Order of Dismissal," the AJ cancelled the hearing request on the grounds that Complainant failed to respond to discovery requests and failure to respond to a Show Cause Order. The record further reflects that the AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its December 28, 2012 final decision, the Agency dismissed claims 1 - 6 pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. Nevertheless, the Agency determined that it would consider these allegations as background evidence in support of Complainant's overall claim of harassment.
The Agency then proceeded to address claims 1 - 8 on the merits, finding no discrimination. The Agency found that assuming, for the sake of argument only, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, the Postmaster, also the OIC, stated that he does not recall exactly what took place when he observed Complainant's work performance but "I recall [Complainant] throwing his collection mail and breaking down bundles of mail to place in collection for processing. This was not his job and is considered a time wasting practice. My job is to observe an employee's work performance and correct deficiencies to improve service. Like I said, I do not remember the exact details of my observation or the date, but if I observed Complainant's work performance and identified an area of improving service, then I certainly would correct the performance."
Regarding claim 2, the Supervisor Customer Services stated that she does not recall the circumstances on December 1, 2010 concerning Complainant's request for 20 minutes of overtime. The Supervisor Customer Services, stated, however, after reviewing Complainant's PS Form 3996 Auxiliary Control for December 1, 2010, she noted that Complainant "did not submit PS Form 3996 for overtime or auxiliary assistance. That being said, I don't understand how his request was allegedly ignored. Also, in reviewing the Route and Carrier Analysis Performance Report, indicated that Complainant received auxiliary assistance for one hour and 19 minutes. The TACS Employee Everything Report for December 1, 2010, indicated [named carrier] assisted Complainant on Route 64."
Regarding claim 3, another Supervisor Customer Services stated that during the relevant period, she was the Customer Service Supervisor (Supervisor). The Supervisor stated that she was unaware of any conversation on or around December 8, 2010 concerning Complainant would be fired. The Supervisor further stated that she does not discuss or talk to carriers about other carriers, including Complainant.
Regarding claims 4, 5 and 6, the Postmaster stated that on December 18, 2010, he could not find Complainant on his route and "when I did find him, I asked where he was. He responded that he had been at lunch. I noticed two drink cups from two different fast food places. One cup was from Subway, which is on his line of travel, but not on his route. We told him not to stop at Subway because it was not an authorized lunch location, and it was delaying him beginning delivery. The other cup was from Culver's, another fast food restaurant. Culver's is not on his route, not an authorized lunch location, and not in his zip code area."
The Postmaster further stated that he asked Complainant if he went to Culver's and "he responded that he did. Again, this was not an authorized lunch location. To control this, we modified his MSP can locations and updated his PS 1564 with his input to the locations he would leave his route for lunch, and placed scan points at the address before and after it. Subsequently, [Complainant] again violated his supervisor's instructions, and was disciplined."
The Manager, Customer Services (MCS) stated that she removed the PS Form 1564-A from Complainant's route book "because he changed the lunch location without authorization. PS Form 1564-A was used as a supporting document for action that was taken against him for deviating from his route and taking lunch at an unauthorized lunch location. I gave the union a copy of Form 1564-A when they filed a grievance. He did ask me for a copy of the PS Form 1564-A, in question, but since the union was representing him, I gave a copy to the union and assumed they gave Complainant a copy."
With respect to Complainant's allegation that he requested his PS Form 1564-A more than a dozen times, MCS stated that Complainant "asking me a dozen time for a copy of PS Form 1564-A is an exaggeration. Once the union began to represent Complainant, all discussions regarding his lunch locations and the PS Form 1564-A, in question, were between me and the union. That's why the union was representing him. I may have overlooked Complainant's request but it certainly wasn't intentional. At the time, both the union and Complainant were requesting documents to move forward with their grievance. I was making sure to provide the union with any document that they requested because they were entitled to documents. If I missed providing copies or any documents to Complainant, it was just an oversight and not intentional."
Regarding claim 7, the Supervisor Customer Services stated that she does not recall the exact date of having a Pre-Disciplinary interview with Complainant "however, I did talk to him about his work performance related to the day before the Pre-D. We have a Pre-D anytime there is concern about an employee's performance to determine if the performance was justified or if corrective action would be necessary. In this case, I talked to Complainant and was satisfied that his performance did not warrant corrective action; therefore, none was taken. I did give him a discussion, but that is not discipline."
Regarding claim 8, MCS stated that Complainant's request for two hours of overtime was denied because the workload on his route did not justify the time. MCS also stated that Complainant "did not immediately submit PS Form 3996 as required in Handbook M-41, Carries Duties and Responsibilities, which states carriers must submit PS Form 3996 immediately after receiving the last dispatch of mail. Complainant failed to do so and submitted PS Form 3996 on his way out to deliver his route. Also, Complainant did work overtime on June 20, 2011, to complete his route."
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See 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. See 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his prior protected activity.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.1
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
June 14, 2013
__________________
Date
1 Because we affirm the Agency's finding of no discrimination concerning claims 1 - 6 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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