0120083648
11-05-2008
Arthur T. Lewis, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arthur T. Lewis, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083648
Agency No. 1J-609-0015-07
Hearing No. 440-2008-00108X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 12, 2008 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.
During the relevant period, complainant was employed as a Vehicle
Operations Assistant, PS-07, at the agency's Chicago Bulk Mail Center
in Forest Park, Illinois.
On September 12, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to harassment and
a hostile work environment on the bases of sex (male) and reprisal for
prior EEO activity when1:
1. on or about May 25, 2007, he was given pre-disciplinary interviews and
disciplinary actions, including a Notice of Removal issued on April 22,
2007, charging him with Failure to Maintain a Regular Work Schedule and
another notice dated May 25, 2007, notifying him that his removal would
become effective that date;
2. he was afforded fewer preferential work assignments than female
employees; and
3. on July 4, 2007, he was not allowed to work overtime when he reported
to work.
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 requested a
hearing but the AJ issued an Order of Dismissal remanding the complaint to
the agency for issuance of a final action on the grounds that complainant
had failed to cooperate, failure to prosecute, and failed to follow
the orders of the AJ. Complainant has not argued or shown on appeal
that he was improperly denied a hearing by the AJ.
In its July 12, 2008 final decision, the agency found no discrimination.
The agency found that complainant did not establish a prima facie case of
sex and reprisal discrimination. The agency further found that assuming
complainant established a prima facie case, management articulated
legitimate, nondiscriminatory reasons for its actions which complainant
did not prove were pretext for sex or reprisal discrimination.
With respect to complainant's harassment claim, the agency found that the
evidence in the record did not establish that complainant was subjected
to harassment based on sex or prior protected activity. Specifically,
the agency found that the alleged harassment was insufficiently severe
or pervasive so as to create a hostile work environment.
Regarding claim 1, complainant's direct supervisor (S1) stated that on
April 20, 2007, he issued complainant a Notice of Removal for failure
to maintain a regular work schedule. S1 stated that as a result of
a grievance, the April 20, 2007 Notice of Removal was reduced to a
Last Chance Agreement (LCA). The record reflects that as part of the
grievance settlement, complainant was to serve a 21-day suspension
from May 31, 2007 to June 19, 2007; maintain satisfactory attendance;
and conduct himself in such a way so as not to incur any additional
discipline within a 9-month period. The record reflects although
complainant signed the LCA, he made notes on the form stating he did
not understand the agreement; was mentally and physically stressed;
and that he was signing the agreement out of fear of retaliation.
S1 stated that on May 25, 2007, he issued complainant a Notice of
Removal due to complainant's failure to voluntarily accept the terms
of the LCA and that the agreement was determined to have been invalid.
Specifically, S1 stated that complainant "was not in agreement with the
Settlement Agreement and he went back and worded it the way he wanted to.
He did not have the right to change the wording of the agreement."
S1 stated that complainant "said he was not in agreement with the wording
and management was trying to burn him. He noted statements had been
made about his job performance and if he made any little slip he would
be gone." The record reflects that as a result of a grievance, the
May 25, 2007 Notice of Removal was reduced to a 21-day suspension with
stipulations that complainant would maintain a certain behavior level when
he returned to duty. Moreover, S1 stated that he did not discriminate
against complainant based on his sex and prior protected activity.
Regarding claim 2, the Manager, Transportation Operations (MTO) stated
that she distributed a memorandum to all employees advising them to
indicate whether they desired supervisory training. Specifically, MTO
stated that she "offered a memo requesting that employees interested in
Supervisor Training contact my office." MTO acknowledged that on April
15, 2007, complainant submitted a request for training. MTO further
stated, "Of the ten (10) employees that responded none received responses
because the training has been and still is on hold." With respect to
complainant's allegation that male employees were "set back" or pushed
aside in order to allow female to have easier assignments, MTO denied it.
Specifically, MTO stated, "Male employees were not set back nor pushed
aside to allow women to have an easier work assignment."
Regarding claim 3, S1 stated that the Vehicle Operations Assistant
(VOA) placed complainant's name on the work schedule to work overtime
on July 4, 2007, and that he informed complainant that he was scheduled
to work on that day. S1 stated, however, that VOA recognized that
scheduling complainant to work would result in penalty overtime, and
informed complainant that he could not work and removed his name from
the schedule. S1 stated, I told her that she might as well let him work
as he was going to be paid, but she would not do it."
VOA stated that while complainant was scheduled to work overtime on
July 4, 2007, the schedule was revised "because they didn't match.
I had given every operations assistant on tour 1 a holiday and one
overtime day. When I saw the holiday and the weekly schedule didn't
match, I changed it." VOA stated that when complainant reported to work,
she told him he was not allowed to work overtime because he had worked
one of his off-days already. Specifically, VOA stated that complainant
"had worked one of his off days and he cannot work the second off day."
VOA stated, however, the mistake was corrected on August 31, 2007.
The record reflects that as a result of a grievance, complainant was
compensated for the loss of overtime. Furthermore, VOA stated that
she did not discriminate against complainant based on his sex and prior
protected activity.
Disparate Treatment
A claim of disparate treatment is examined under the three-party 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 the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
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. 01970727 (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 incidents complained of, even if
true, do not rise to the level of a hostile work environment.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 5, 2008
Date
1 For ease of reference, the Commission has numbered complainant's claims
as claims 1 - 3.
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0120083648
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083648