0120131839
09-10-2013
Charles Raynor, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Charles Raynor,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120131839
Hearing No. 490-2011-00102X
Agency No. 1G-721-0027-10
DECISION
On April 5, 2013, Complainant filed an appeal from the Agency's March 7, 2013, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Processing and Distribution Center facility in Little Rock, Arkansas.
On December 8, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected to harassment on the bases of race (African-American), sex (male), age (60), and reprisal for prior protected EEO activity when:
1. Beginning September l, 2010, Complainant was forced to work outside of his bid (on higher level) and on unspecified date(s) was sent home for not working on higher level;
2. On unspecified date(s), he was forced to work alone on the Tow Motor; and,
3. On unspecified date(s) he was denied changes of location.
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). Complainant timely requested a hearing and the AJ held a hearing on January 23, 2013, and issued a decision on March 4, 2013.
The AJ made a finding of facts based on the evidence presented in the record, evidence provided at the hearing, and the AJ's credibility determinations. The AJ noted that evidence showed that one of Complainant's witnesses' statements had not been written by witness but by Complainant. The AJ found that this undermined Complainant's credibility.
The AJ reviewed the record and first found that the Agency did not subject Complainant to disparate treatment. The Agency articulated legitimate, nondiscriminatory reasons for its actions. As to claim (1), Complainant asserted that he asked to work outside of his bid at a higher level and when he refused, he was sent home. The Agency indicated that Complainant refused to work on the tow motor on September 1, 2010, because he was taking medication. The AJ found that Complainant was not asked to work outside of his bid. Furthermore, the AJ held that during the hearing, Complainant stated that he refused to work most of 2010 and 2011, and was told to go home. The AJ found no evidence to support Complainant's assertion. As such, the AJ concluded that Complainant was sent home on only September 1, 2010, which the Agency argued was due to medication and his inability to work on the tow motor. As to claim (2), the AJ found that Complainant was forced to work on the tow motor alone because there was only one tow motor. As such, the employee assigned the tow motor worked alone. The only time the Agency had more than one tow motor was during the Christmas holidays when they had two employees working two tow motors. Finally, as to claim (3), the AJ indicated that Complainant requested a change of work location and that the only individual who could grant that request was the Plant Manager. The Plant Manager averred that he would not grant the request because the reason Complainant gave for the change of work location was that he did not want to work for his supervisors anymore. Also, the Plant Manager asserted that Complainant was needed at the location to which he was already assigned. In addition, the Plant Manager indicated that Complainant never personally raised the issue with the Plant Manager despite being told by the Supervisors that only the Plant Manager could grant such a request. Therefore, the AJ asserted that Complainant did not show how he was harmed by the alleged denial of change of work location. The AJ found that the Agency provided legitimate, nondiscriminatory reasons for its actions. The AJ then turned to Complainant to establish that the Agency's reasons were pretext. The AJ determined that Complainant failed to do so.
The AJ then found that Complainant failed to establish his claim of harassment. The AJ determined that incidents raised were episodic and not pervasive. As such, the AJ concluded that the events did not rise to the level of creating a hostile work environment. Accordingly, the AJ held that the Agency did not subject Complainant to disparate treatment or harassment as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. On appeal, Complainant indicated his dissatisfaction with the AJ and the AJ's decision.
ANALYSIS AND FINDINGS
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, at � VI.B. (November 9, 1999).
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 or she 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 Ctr. 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. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review, we find that the record supported the AJ's findings and conclusions that the Agency provided legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were pretext for discrimination based on his race, sex, age and/or prior EEO activity.
It is well-settled that harassment based on an individual's race, sex, age, and/or prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on race, sex, age, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review, the record supports the AJ's determination that Complainant failed to show that he was subjected to conduct that so severe or pervasive to create a hostile work environment. Accordingly, we conclude that Complainant has not established that he was subjected to a hostile work environment based on his race, sex, age and/or prior EEO activity.
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 action implementing the AJ's decision finding no discrimination.
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 10, 2013
__________________
Date
2
0120131839
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131839