0120092987
12-09-2009
Clarence E. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Clarence E. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092987
Agency No. 4G-760-0121-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 22, 2009 final decision concerning an equal
employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Sales Service
Associate at the agency's Melear Station in Arlington, Texas.
On October 9, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of disability (left knee, right shoulder, lower back, bowel
syndrome, high-blood pressure, glaucoma, asthma, sleep disorder, allergies
and phobia) and retaliation (for filing the instant complaint) when:
(1) beginning June 11, 2007, he was harassed and targeted for termination;
(2) on June 11, 2007, he was placed off duty in a non-pay status; and
(3) on July 25, 2007, he was issued a Notice of 14-day suspension
effective August 27, 2007.
At the conclusion of the investigation, complainant was provided with
a copy of the report of the investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing; however, complainant subsequently withdrew
his request. Consequently, the agency issued the instant final decision
pursuant to 29 C.F.R. � 1614.110(b).
In its May 22, 2009 final decision, the agency found that complainant
did not establish a prima facie case of disability and reprisal
discrimination.1 The agency further found assuming, arguendo, that
complainant established a prima facie case of disability and reprisal
discrimination, management nevertheless articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext for discrimination.
Regarding the harassment claim, the agency found that the evidence in the
record did not establish that complainant was subjected to harassment
based on disability and 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 record reflects that complainant alleged that he
was harassed by a named supervisor (S1), now the Postmaster of a different
facility, who approached him from behind even though complainant had told
S1 that he (complainant0 had a problem with people approaching him from
behind. The record further reflects that complainant stated that when he
first reported S1 behavior to his immediate supervisor (IS), S1 stopped;
complainant stated, however, that S1 ceased such activity only until IS
was assigned to a different station. Complainant stated that after IS
left, S1's behavior of approaching him from behind started up again.
S1 denied subjecting complainant to harassment. S1 further stated
that complainant "was not a 'target' on June 11, 2007, as he claims.
[Complainant] did, however, place himself on the list for removal by
his actions and violent behavior on June 11, 2007." S1 stated that
"when supervising the clerks at the window it was common to approach
the area directly behind where the clerks stand, at their work stations,
from the workroom floor." Specifically, S1 stated that on June 11, 2007,
he "walked up and stood between the two workstations that [Complainant]
and [a named clerk (C1)] were occupying. I needed to speak to [C1].
I was waiting there for him to finish the customer transaction he was
involved with. The practice of a supervisor walking up in this area
has never stopped." S1 stated that complainant "began to shout at me
and come towards me, on the workroom floor. He screamed that he was
tired of this, for me to get out of his face, and that he was going to
'body slam' me, he said that I was going to 'get hurt,' and that he was
'bucking up' on me. By this time he was so close I was feeling the
spittle, from his mouth, on my face. I wiped my face and took a few
steps back but he advanced again still yelling at me." S1 stated that
the Postal Inspectors were called because complainant "was completely
out of control and threatening a Postal Employee."
S1 stated that following the June 11, 2007 incident, the Postal
Inspectors, the Station Manager and a supervisor conducted an
investigation. Furthermore, the S1 stated that the finding of the
investigation showed "no harassment was found."
The Manager Customer Service Operations (MSCO) stated that while he has
been the manager at the Melear Station for approximately four years,
complainant "has never mentioned to me 'please do not approach me from
behind.' I would never allow anyone at my station to be harassed."
With respect to complainant's contention that he was being targeted
for downsizing, the District Complement Coordinator (C1) denied it.
Specifically, C1 complainant's position "was not affected by excessing.
He is still at the Melear Station according to Human Resources Records."
Regarding claim (2), MSCO stated that on June 11, 2007, he was the
deciding official to place complainant in a non-pay status. Specifically,
MSCO stated that complainant's behavior towards S1 "was unacceptable
and he was disrupting the unit and I placed him off the clock."
The record contains a copy of MSCO's written notice dated June 18,
2007 to complainant. Therein, MSCO notified complainant that he was
being placed in an off-duty status (without pay) effective immediately
in accordance with Article 16, Section 7 of the National Agreement for
the following reason(s): on June 11, 2007 at approximately 2:35 pm you
displayed that your actions could be injurious to yourself or others."
Regarding claim (3), SCS stated that during the relevant time he was
away on leave and that the Notice of 14-day suspension "merely had my
name affixed to it but was signed by [MSCO]."
MSCO stated that he was the concurring official in regard to management's
determination to issue complainant a 14-day suspension. MSCO stated that
the basis for making the decision was based on complainant's unacceptable
behavior on June 11, 2007.
The record contains a copy of complainant's July 20, 2007 Notice
of Suspension. Therein, complainant was notified that he was being
suspended for a period of fourteen days for improperly conduct and that
he was in violation of the following Postal rules and regulations"
Sections 338.13 of the Administrative Support Manual (ASM), Section
665.16 of the Employee and Labor Relations Manual (ELM) and the Zero
Tolerance Policy. The record reflects that Section 338.13 of the
ASM states "employees assaulting or threatening other employees or
Postal customers may be subject to remedial or disciplinary action,
including discharge." The record further reflects that Section 665.16
of the ELM states that "employees are expected to conduct themselves
during and outside of working hours in a manner which reflects favorably
upon the Postal Service. Employees are expected to maintain harmonious
working relationships and not to do anything that would contribute to
an unpleasant working environment."
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 record does not support a finding
that complainant was subjected to any agency action that rose to the
level of a hostile work environment.
Complainant, on appeal, argues at length that the agency improperly
investigated his formal complaint. Specifically, complainant states that
he objects to "the Agency's Report of Investigation for, inter alia,
[Investigator's] presentation of her own conclusory interpretation of
events as fact [emphasis in the original]." Complainant further argues
that S1 "caused the 'startle to suspend' incident on June 11, 2007 and
he succeeded in triggering a phobic reaction in [complainant]." However,
the Commission determines that the investigation was properly conducted,
and that complainant has provided no persuasive arguments indicating
any improprieties in the agency's findings.
Therefore, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision because the preponderance
of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
December 9, 2009
__________________
Date
1 For purposes of its review, the Commission has assumed, without
deciding, that complainant is an individual with a disability within
the meaning of the Rehabilitation Act.
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0120092987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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