0120140453
04-01-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120140453
Hearing No. 480-2012-00740X
Agency No. 4F-926-0213-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 19, 2013 final action 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Orange, California Post Office.
On October 14, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of national origin (Filipino) and age (over 40) when:
management did not talk to Complainant about a co-worker having threatened Complainant's life on or about May 18, 2011.1
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 12, 2013, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action.
In his decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not establish a prima facie case of national origin and age discrimination. The AJ nevertheless found that the Agency articulated, legitimate, nondiscrimination reasons for its actions which Complainant did not show were a pretext.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on national origin and age. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The AJ found that the record contained the following undisputed facts. On May 18, 2011, in the employee parking lot at the Orange Post Office, Complainant had a verbal exchange with a co-worker during which the co-worker gave Complainant express mail to deliver. Complainant said to the co-worker "why don't you deliver it yourself?" The co-worker responded "it's not my job." Complainant then said "An hour? Two hours?" The co-worker did not further respond and left the parking lot.
Further, the AJ noted that on the same day, May 18, 2011, the co-worker told the supervisor Customer Service (supervisor) that when he gave Complainant the express mail in the parking lot, Complainant had made a derogatory remark and that the co-worker wanted to file an EEO complaint against Complainant. Later in that day, Complainant spoke by telephone with a female City Carrier, also his live-in partner, at the Orange Post Office. The female carrier told Complainant that the co-worker had threatened to kill Complainant. The AJ noted that on May 19, 2011, the carrier wrote a statement in which she stated that on May 18, 2011, the co-worker was yelling very loudly to the supervisor "if this fucking happens again I'm walking out!," and the co-worker then looked at her and said "I'm going to fucking kill that guy, or get him fired. I am going to file an EE[O]." The carrier also stated that when she asked the Supervisor who he was talking about, the Supervisor responded "who else [Complainant]!"
The AJ noted that on the same day, May 19, 2011, Complainant also submitted a written memorandum to the Postmaster stating that on May 18, 2011, he received a telephone call stating to him that his life was threatened by a co-worker. The AJ further noted later that day, a union steward reported to the Postmaster that Complainant had been threatened by the co-worker on May 18, 2011. The Postmaster then contacted the Agency's Santa Ana District Threat Assessment Team and conducted investigative interviews with the co-worker, and several carriers. The AJ noted that based on the interviews and after speaking with the Threat Assessment Team, the Postmaster concluded that the co-worker had made "a non-viable threat" and had used inappropriate language.
The AJ noted that the record reflects that Complainant worked on May 19, 20 and 21, 2011. Complainant did not work on May 22, 2011, which was his non-scheduled day. On May 23, 2011, Complainant arrived at work but left work after an hour because he felt anxious and scared, and feared for his safety because the co-worker was still working at the Orange Post Office. The AJ noted during the period of May 23, 2011 through June 2, 2011, no one from management spoke to Complainant about the incidents or the result of any investigation of the May 18, 2011 incident. The record reflects that Complainant was off from work from at least May 24, 2011 through June 15, 2011.
The AJ noted that on June 13, 2011, the supervisor issued the co-worker a seven-day no time-off suspension based on his conduct on May 18, 2011. In the suspension letter, the supervisor placed the co-worker on notice that "on May 18, 2011, you made a statement to [carrier] that 'I'm going to fucking kill that guy or get him fired' and that he 'willfully admitted' in a May 19, 2011 investigative interview that he used profanity."
The AJ noted in his affidavit, the Postmaster stated that he became aware of the May 18, 2011 incident between Complainant and co-worker on May 21, 2011. Specifically, the Postmaster stated "I became aware of the alleged threat in the afternoon. [Complainant] had already left and went home to go to the doctor's to get a medical restriction for his claim of on-the-job injury prior to this incident. So, when I was told about this alleged threat by the union steward on Monday afternoon, May 21, 2011, that this alleged threat occurred on Friday, May 18, 2011, between [co-worker] and [Complainant] that [co-worker] had made a threat against [Complainant] to hurt him. I asked if she had any statements since this happened on Friday and today was Monday. She said 'yes' but didn't provide [Complainant's] statement till Wednesday May 23, 2011."
Further, the Postmaster stated that he immediately contacted the Santa Ana District Threat Assessment Team "who contacted the Postal Inspectors, OIG, District Manager, and Human Resources Manager. I then brought in the [co-worker] who alleged made the threat against [Complainant]. I conducted an investigative interview with [co-worker], [carrier], and [another carrier]. I reviewed all the information to determine to the threat level to defuse any and all possible incidents. After talking with all the Team members, it was determined that this was not a non-viable threat, but only inappropriate language by [co-worker]." The Postmaster stated that during the relevant period "several attempts were made to contact [Complainant] by phone since he was out from work, but no answer."
The AJ noted that the supervisor stated that he became aware of the incident between Complainant and co-worker on May 18, 2011 by a co-worker. Specifically, the supervisor stated that the co-worker informed him that he "took express mail to [Complainant] in the parking lot when [Complainant] made a d[ero]gatory remark. [Co-worker] said he wanted to file an EEO against [Complainant]. I went to speak to [Complainant] but he had already left for his route. I did not receive any notification of this alleged incident until Monday May 21, 2011 from [union steward]. [Complainant] had already gone home in the morning." The supervisor stated that he then notified the Postmaster of the May 18, 2011 incident.
Further, the supervisor stated that following an investigation, it was determined that there was "no viable threat only inappropriate language." The supervisor stated that he issued the co-worker a 7-day suspension for his conduct on May 18, 2011. Moreover, the supervisor stated that at that time, Complainant "never returned to work since May 21, 2011 to present. Several phone calls were no[t] answer[ed]."
Complainant, on appeal, argues that AJ erred in issuing a summary judgment because there are material facts at issue. Complainant argues that during the relevant period, he could not get a hold of his representative and that he "felt that I wasn't represented fairly in my case."
Further, Complainant argues that the EEO investigator conducted an inadequate investigation by not obtaining significant witness statements and relevant documents concerning the May 18, 2011 incident. For instance, Complainant notes in his affidavit, the Postmaster stated that he "called the Assessment Team to investigate, but in fact there was no investigating team. Otherwise [Postmaster] sent a note to the Agency stating that he called Assessment Team by phone, and the union steward in the early months of this case, sent request after request three to four times asking for record's about the incident between [co-worker] and [Complainant] from different official's namely [Postmaster] that time, [named supervisor] and [named Agency official] replacing [Postmaster] as Postmaster (City of Orange) [named supervisor] and [new Postmaster] said on their notes that there is no records of the incident between [co-worker] and [Complainant]."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward his national origin or age.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
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
April 1, 2014
__________________
Date
1 The record reflects that on November 3, 2011, the Agency issued a final decision dismissing the instant formal complaint on the grounds of untimely EEO Counselor contact. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Complainant v. United States Postal Service, EEOC Appeal No. 0120120867 (April 17, 2012). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
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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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