David A. Krewson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120055300 (E.E.O.C. Feb. 23, 2007)

0120055300

02-23-2007

David A. Krewson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.


David A. Krewson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 01200553001

Hearing No. 340-2004-00142X

Agency No. 4F-920-0096-02

DECISION

JURISDICTION

On July 28, 2005, complainant filed an appeal from the agency's June 24,

2005 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Full Time Carrier Technician at the Hemet Post Office in Hemet,

California. On February 15, 2002, complainant contacted an EEO Counselor

and filed a formal EEO complaint on June 12, 2003, alleging that he was

discriminated against on the bases of race (Caucasian), sex (male), color

(White), age (D.O.B. 08/27/52), and in reprisal for prior protected EEO

activity (arising under Title VII and the ADEA) when:

1. From January 2002 through January 2003, management marked him as

Absent Without Leave (AWOL), applied to him 48 hours of Leave Without

Pay (LWOP), told him that the medical certification letters he provided

following his absence were not good enough, and, unlike other employees,

required him to provide more medical documentation for absences.

2. On unspecified dates, as a result of management's inappropriate

actions, he was shorted 48 hours pay for overtime, and on January, 2,

2003, S2 denied him overtime2;

3. On February 2, 2002, Supervisor, Customer Service (S1) denied him the

return to duty, resulting in loss of 1.61 hours of overtime on February

2, 2002, 1.51 hours on February 5, 2002, and 0.52 hours on February 6,

2002;

4. On April 10, 2002 and April 22, 2002, management denied him overtime

he should have worked;

5. On April 25, 2002, S1 instructed him to make leave time and do his

route in 8 hours;

6. On April 27, 2002, management denied him 7:01 time like other

carriers;

7. S1, Supervisor, Customer Service (S2), and Supervisor, Customer

Service (S3), tried everything to deny him overtime on his own route

(such as on May 24, 2002);

8. S3 applied 8 hours of LWOP for a sick call he placed on June 6, 2002;

9. On August 30, 2002, Supervisor, Customer Service (S4), gave him an

investigative interview for the accusation of striking another carrier

with his backpack;

10. On October 10, 2002, S2 gave him different clock-in instructions

than other employees;

11. S2 called him in for an official discussion for failure to follow

instructions;

12. On November 23, 2002, S2 told him to drop a 45 minute swing because

he had spent an hour with the union steward;

13. In December 2002, after filing eleven grievances on the denial of

overtime, he learned that management falsified carrier clock rings in

order to prevent these grievances from being filed3;

14. On January 2, 2003, he was required to drop a 2 hour swing in

retaliation for declining S2's request to switch to city route #35;

15. On January 8, 2003, S2 gave him an official discussion; and

16. On January 2, 7, 21, and 23, 2003 as well as on February 10, 11,

19, and 20, 2003, S2 did all she could to deny him overtime4.

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 timely

requested a hearing but subsequently the AJ dismissed the matter,

remanding it to the agency for a final decision.

In his Sanctions/Dismissal Order, the AJ stated that at the January 25,

2005 pre-hearing conference, he pointed out that there was insufficient

evidence in the record to support complainant's numerous allegations, and

further noted that the agency had proffered legitimate, nondiscriminatory

reasons for its actions and that complainant had not challenged the

agency's assertions. At that moment, the AJ decided to offer complainant

another opportunity to respond to the agency, clarify his claims, and

identify documentary and testimonial evidence that support his claims

by asking him to file a Pre-Trial Brief. Complainant filed the brief,

but, according to the AJ, complainant did not even attempt to clarify the

issues or identify evidence needed to prove his case. Quoting complainant

from complainant's brief, the AJ stated that complainant believed he had

"no legal duty to respond and 'clean up' the agency['s] motion for summary

judgment." The AJ thereby concluded that "though I may feel sympathy for

a complainant that does not follow through with discovery in accordance

with Commission rules because of unfamiliarity, here, complainant had

a representative who identifies himself as being a lawyer familiar with

the process, and the Acknowledgment and Order issued provided guidance

and references on discovery that were clearly not followed. Accordingly,

I do not find that Complainant proffered compelling evidence to support

a reopening of discovery." Sanctions/Dismissal Order.

Pursuant to the Order, the agency issued a final decision. The decision

concluded that complainant failed to prove that he was subjected to

discrimination as alleged.

FINAL AGENCY ACTION

The agency found that complainant had not established a prima facie

case for his discrimination claims because he did not show that he was

treated differently than similarly situated full-time carrier technicians

outside of his protected groups under similar circumstances. Similarly,

the agency found that complainant had not made out a prima facie case

of harassment because he did not prove that the alleged incidents were

based on his protected classes and did not rise to the level of actionable

harassment. Nevertheless, the agency continued with the analysis assuming

complainant had established prima facie cases for his claims; however, it

concluded that management provided legitimate, non-discriminatory reasons

for all its actions which complainant did not rebut with evidence that the

reasons are merely a pretext to discriminate and retaliate against him.

CONTENTIONS ON APPEAL

Complainant makes several arguments on appeal. First, he maintains that

he has presented a prima facie case because there is no true difference

between Level 01 and Level 02 City Carriers. Except for the fact that

they have a different number of routes each week, all other aspects of

their work situations are the same. However, arguing in the alternative,

he further states that even if it were true that he fails to make a

prima facie case, it is the agency's fault as it did not comply with his

discovery requests and he was unable to determine necessary information.

Second, complainant points out that the investigative file is incomplete

and partial to the agency. Lastly, complainant responds to each of the

justifications presented by the agency for each of his claims. We shall

address these points below. The agency, for its part, did not submit

a statement in opposition to the appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. See 29 C.F.R. � 1614.405(a); EEOC Management

Directive 110, Chapter 9, � VI.A. (Nov. 9, 1999) (explaining that the de

novo standard of review "requires that the Commission examine the record

without regard to the factual and legal determinations of the previous

decision maker," and that EEOC "review the documents, statements, and

testimony of record, including any timely and relevant submissions of

the parties, and . . . issue its decision based on the Commission's own

assessment of the record and its interpretation of the law").

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, complainant must satisfy the

three-part evidentiary scheme fashioned by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially

establish a prima facie case by demonstrating that he or she was subjected

to an adverse employment action under circumstances that would support

an inference of discrimination. See Furnco Constr. Co. v. Waters, 438

U.S. 567, 576 (1978). Proof of a prima facie case will vary depending

on the facts of the particular case. See McDonnell Douglas, 411 U.S. at

804 n.14. In a retaliation claim, complainant can establish a prima

facie case by showing that: (1) he engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he was subjected to adverse treatment by the agency; and (4) a nexus

exists between the protected activity and the adverse treatment. Whitmire

v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. See Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,

complainant must prove, by a preponderance of the evidence, that the

agency's explanation is pretextual. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993).

We begin our discussion by looking at claims 6, 10, 11 and 14. After a

thorough review of the investigative file, we find that complainant has

failed offer any proof to sustain these allegations. Specifically,

he has not shown that similarly situated individuals who are not of

his race, color, sex and age received different treatment under similar

circumstances. In fact, we note that he did not provide much information

at all about these claims and, even though the AJ specifically asked him

to clarify them in order that he can fairly evaluate them in light of the

agency's motion for a decision without hearing, complainant refused to

cooperate and did not substantiate his claims. As such, he presented no

other evidence that even suggests the alleged action was taken because

of the protected bases, and consequently, these claims fail. With

regard to the other claims, we decline to address whether complainant

named adequate comparators to make out a prima facie case. Instead,

we shall assume that he did so and that he established prima facie cases

of discrimination and retaliation for purposes of discussion.

Turning now to the second step in the McDonnell analysis, we focus our

attention on whether the agency provided legitimate, non-discriminatory

reasons for its actions. In this regard, we note that the complainant

in these matters always carries the burden of proving that the agency's

action is discriminatory. The agency's burden, by contrast, is only

one of production of evidence, not of persuasion. In other words,

the agency need only provide "a specific, clear, and individualized

explanation for the treatment accorded complainant" to satisfy its burden.

Miller v. United States Postal Serv., EEOC Appeal No. 01A55387 (June 9,

2006).

With regard to claim 1, the agency explained the incidents occurred

because complainant had not called in or informed anyone at the office

that he would be absent. The day before his absence, he mentioned that he

was afraid for his safety. This comment prompted S1 to become concerned

that he needed medical clearance to return to work. For this reason,

management requested that he bring medical documentation to support

his absence. See Aff. B. Instead, complainant brought a note from his

chiropractor, which did not even explain his absence, and when questioned

by the Postmaster why he did not come to work as instructed, complainant

simply replied that he was out for personal reasons.5 See Aff. E.

With regard to claims 2, 3, 4, 7, 13 and 16, management explained

that when complainant attempted to return to work on February 2, 2002,

following his unauthorized absence, he did not provide the requested

medical documentation. As S1 believed his return to work could raise

safety concerns, she simply refused his return until he complied with

her orders. Quite reasonably, she states, that if complainant lost

overtime opportunities because of his absence and actions in failing to

follow a supervisor's instructions, it is of his own doing. See Aff. B.

With regard to other overtime denials, management explained that carriers

are guaranteed only 8 hours of work. Overtime opportunities are available

only upon management's discretion and no employee has a right to them.

See Aff. C. Management further explained that they are responsible

for making sure mail is delivered in the most cost efficient manner.

They discovered that many employees, including complainant, "overran

hours" on a weekly basis. In order to better manage the workload and

employee work hours, management began administering the workload more

evenly on a weekly basis, so that there was would be a decreased need for

overtime on heavy volume days, and so that employees with "undertime"

meet their hourly requirements. This action reduced the number of

overtime opportunities available to employees. See Aff. B.

With regard to claim 5, S1 explained that she routinely instructed

carriers to make their leave time and keep their routes to 8 hours.

This is part and parcel to her responsibility of being a supervisor;

she must ensure employees carry out their job obligations in a cost

efficient manner that benefits the agency. She gave all her subordinates

the same instructions she gave complainant. See Aff. B. As for claim 8,

S4 admitted that he had entered LWOP time into the timekeeping system

because, at the time, that is what he believed needed to be done, but

later S3, who handled complainant's attendance, corrected the error

and deleted the entry. See Aff. D. S4 also explained his actions with

regard to claim 9. He acknowledged that he called complainant in for

an investigative interview as a result of a co-worker's complaint that

complainant had hit him with his backpack. According to S4, complainant

and this other co-worker did not get along and each had filed several

complaints about the other's conduct. As this particular complaint,

involved physical aggression, S4 states that he took it very seriously

and immediately questioned both employees about the incident as well as

other witnesses. S4 determined that the incident was an accident and

he took no further action against complainant. See id.

As for claim 12, S2 explained that on the date in question, complainant

had asked for 45 minutes of overtime, but she denied his request because

another employee under her supervision and in the same zone had 45 minutes

of "undertime." As explained above, part of management's responsibility

is that all carriers perform their job duties and ensure the work is

done in a cost efficient manner for the agency. S2's action in this

regard is in line with her responsibility as a supervisor. S2 further

explained that the official discussion she gave complainant on January 8,

2003, claim 15, was warranted. See Aff. C. Although it is not entirely

clear, the discussion related to safety and the failure to follow the

supervisor's orders. See Aff. A.

Now, we move to the last step in the McDonnell Douglas analysis,

and determine whether complainant provided evidence showing that the

agency's reasons are merely pretextual. We find that he has not.

Complainant insists that the actions were both discriminatory and

retaliatory and any deficiency in his claims is the agency's fault

for not making available to him documents that prove his case. Again,

we must point out that the AJ extended to complainant an opportunity to

clarify his claims and explain why he feels so strongly that actions are

wrongful and what evidence he believes support his claims. If indeed

the agency wrongly withheld information, it was for the AJ to evaluate

and decide accordingly. Complainant perhaps would have benefited from

a hearing, given the nature of the facts as they stand on the record,

but complainant refused to cooperate with the AJ's requests. As such,

he fails to meet his evidentiary burden by not showing that the agency's

actions were motivated by discriminatory and retaliatory animus.

Harassment

Finally, under the standards set forth in Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993), complainant's harassment claim also fails See

Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6 (Mar. 8,

1994). Complainant must prove that: (1) he was subjected to harassment

that was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile work environment, and (2)

the harassment was based on membership in a protected class. See id.

There is insufficient evidence in the record to support a finding because

neither criterion is met.

We already found that the agency acted appropriately when it took the

alleged acts against complainant. Thus, as these actions were legitimate

and non-discriminatory, they cannot form the basis of a hostile work

environment. We further note that both complainant and S2 had very

different, strong personalities, and each had a contrasting view of how

to accomplish the agency's work. Perhaps S2 was particularly strict

and somewhat abrasive at times, and complainant himself admits that he

is an "assertive carrier" (see Statement on Appeal at 5), but we remind

complainant that the EEOC regulations are not to be used as a code of

general civility. The regulations forbid "only behavior so objectively

offensive as to alter the conditions of the victim's employment."

Onacle v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998);

accord Vore v. Indiana Bell Telephone Co., 32 F.3d 1167 (7th Cir. 1994)

(noting that Title VII does not create a right to work in a pleasant

environment; merely one that is free from discrimination").

CONCLUSION

After a careful review of the record, we conclude that complainant failed

to demonstrate that the agency's actions were motivated by discriminatory

animus. Consequently, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (Z1199)

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

February 23, 2007

__________________

Date

1 Due to a new data system, your case has been redesignated with the

above referenced appeal number.

2 In his appeal statement, complainant states that he did not make

this allegation. He states that he "had been shorted 48 hours of pay

plus overtime, but the 48 hours LWOP was reimbursed as sick leave as

well as 2 days administrative leave." If indeed this is a claim and the

agency erred in framing it, we do not agree that the error entitles him

to a hearing. We do fault the investigator for not capturing the true

essence of complainant's claim. However, being that complainant found

the stated claim erroneous, and, contrary to what he believes, it was his

responsibility to inform the agency of the error. Only complainant is

best suited to explain the issues he raises in a complaint. He should

have clarified the issue at the onset of the investigation and when

asked by the AJ before the planned hearing, see, infra. As such, we

decline to address the issue as complainant now presents it. See Torres

v. Dep't of Treasury, EEOC Request No. 05920793 (May 13, 1993); see also

Scaglione v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 01A50209

(Feb. 10, 2006).

3 In his statement on appeal, complainant again argues that the "agency

falsified" his claim because he never presented it as stated above.

He maintains that "the local union filed grievances for no less than

eleven out of seventeen days [he] worked in December 2002 for local

management violating [his] overtime rights." He argues that this claim

is an example of how management allegedly would "go out of their way to

deny [him] any overtime as compared to other employees." Once more, we

note that if complainant found error in the agency's articulation of his

claim it was his responsibility to correct the error. Complainant had

various opportunities to clarify his claims, but chose not to do so.

As explained in footnote 2, supra, we shall not penalize the agency

because complainant sat on his rights. In any event, we find that his

claim, as he states should have been articulated, is captured in claims

7 and 16.

4 Complainant also raised two additional claims that the agency dismissed

on procedural grounds for not having been raised before an EEO Counselor

within 45 days of its occurrence and for failing to state a claim.

As complainant has not specifically appealed the dismissal of these

claims, we do not disturb the agency's determination.

5 On appeal, complainant argues that he did call to inform that he

would be absent from work, and he submitted a document by the Postmaster

stating that he did in fact speak to complainant the date of his absence.

We note, that this was the type of documentary evidence the AJ asked

for but that complainant failed to submit. Bringing it forth now

on appeal is too late, as we do not accept new evidence on appeal.

See EEO Management Directive 110, Ch. 9 � VI.A.3 (1999); Federal Sector

Equal Employment Opportunity, 64 Fed. Reg. 37,654 (July 12, 1999) ("[N]o

new evidence will be considered on appeal unless the evidence was not

reasonably available during the hearing process"). Complainant should

have cooperated with the AJ when instructed to do so. In any event,

the document does not help complainant in showing that the agency's

actions were discriminatory or retaliatory.

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