0120130824
05-16-2013
David C. Kea, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
David C. Kea,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120130824
Hearing No. 471-2011-00013X
Agency No. 4J-481-0151-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 21, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as a Vehicle Operational Maintenance Assistant (VOMA), at the Agency's Plymouth, Michigan facility.
On August 20, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected activity when:
1. on July 21, 2010, he was placed on emergency placement in an off-duty status; and
2. on August 5, 2010, he received a Notice of Removal.1
Following a hearing held on March 6, 20 and 1, 2012, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not establish a prima facie case of race and reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted that during the relevant period, Complainant's VOMA job required him to shuttle vehicles between the Livonia, Michigan facility and other facilities and cities. The AJ further noted that Complainant often would come to the Livonia facility approximately six or seven times a day. Complainant complained that there was always considerable use of profanity at the Livonia facility and that employees were being disrespectful. The AJ found Complainant was not credible during his testimony when he claimed he did not engage in swearing. Specifically, the AJ stated that Complainant may have complained about the language but that he also used such language himself.
The AJ noted that based on an incident that occurred on July 21, 2010, management placed Complainant on emergency placement off-duty status for conduct for using profanity and being disruptive. The AJ noted that following a July 26, 2010 investigative interview, Complainant was issued a Notice of Removal dated August 5, 2010 for conduct unbecoming a Postal employee on July 21, 2010. The AJ noted that the Notice of Removal was later reduced to a 14-day suspension as a result of an arbitration award.
The AJ noted that during his testimony, the former Lead Vehicle Mechanic stated that during the relevant period he worked at the Livonia facility and Complainant would drop off vehicles for repair. The former Lead Vehicle Mechanic stated that on July 21, 2010, Complainant stopped by the facility to drop off a vehicle, Complainant "was going around saying that I have a bunch of fucking ignorant employees working for me, okay." The former Lead Vehicle Mechanic stated that he asked Complainant to repeat because "I didn't believe my ears, what I heard. [Complainant] said, 'you have a bunch of fucking ignorant employees working for you.' I said, 'you mean for the Post Office?' And at that time [Complainant] just circled the around the back of my desk and went into the office. I believe [a named Mechanic (M1)] was going in the office at the same time, and I heard some yelling in the office but the three of them, [Supervisor of Livonia facility], [Complainant] and [M1], all I heard was [Complainant's] voice saying, 'fucking' and 'ignorant.' And the next thing I know, all three of them come out of the office and [supervisor] had [Complainant] outside and was pointing his finger at him telling him to go back to his station and stay there."
The former Lead Vehicle Mechanic further stated that he later found out that M1 went to the police station regarding a personal protection order. The former Lead Vehicle Mechanic stated that during the commotion, he did not hear M1 make any comments to Complainant.
The AJ noted that during his testimony, M1 stated that initially he and Complainant got along well and that Complainant "helped me put up a fence next door to my neighbor." M1 stated that when Complainant started having problems with the supervisor, he would contact him about broken vehicles so he would not have to go through the supervisor. M1 stated that his friendship with Complainant grew to be neutral where they only greeted each other and were cordial.
M1 stated that his relationship with Complainant changed more after a conflict between Complainant and the supervisor. Specifically, M1 stated that there was an incident in which Complainant asked the supervisor to step outside, which was perceived as a threat to fight. Complainant told the supervisor that he was going to handle it like a man and that he would beat him up. The record reflects that both Complainant and the supervisor were issued discipline for their involvement in the confrontation.
M1 stated that on one occasion, he was changing a tire in the presence of Complainant and a named mechanic and he asked them if they can all "play nice now" and back to "living our life" but Complainant said "no" because he and the named mechanic were going to try to get the supervisor out of his job. M1 stated that he objected to Complainant and stated that it was wrong to try to get the supervisor after he had invited him to go outside to beat him up. M1 also told Complainant that they could no longer be friends and to stay away from him. M1 stated that Complainant wanted to talk but he told him "no" and it was not right that he was trying to get the supervisor fired when he threatened to beat him up. M1 stated that Complainant then told him "you don't know who you fucking with. I'm gonna get you.' I said, what does that mean?' 'You gonna see. You gonna see. You don't know who the fuck I am.' Then he walks around the building. So I didn't think of anything of it. And from that point day on, every little thing, [Complainant's] been doing it to me. He'll do a little something."
Further, M1 stated that Complainant accused him of leaving vents open in the back of mail trucks "so he could get cold as he's driving home. I mean driving back to the station. And everybody said, '[Complainant], all you gotta do is shut the mail things what - - or shut the side door." M1 stated there was one incident which he took "really offense to . . . when [Complainant] said that I sabotage the vehicle. He even wrote it down and faxed it over to [Supervisor], and I never got in the vehicle. At that time I stayed away from [Complainant]. When he would come into the building I would go around, he wouldn't even seen me. I would drive out. I would just stay away from him." M1 stated that he avoided Complainant "because I was afraid of him."
The AJ determined that M1 credibly testified that when Complainant got the job as a VOMA "immediately he came in with an attitude. Well, he [had an attitude with] everybody else. I never had a chance for him to get an attitude with me. He had a real bad attitude with [former Lead Vehicle Mechanic]." M1 stated, for instance, that Complainant told him that the former Lead Vehicle Mechanic would ask him "take a vehicle to another station, like that's his job, you're supposed to do that, or fix a headlight or tighten up a mirror, you're supposed to do that. [Complainant] was always being combative, 'I ain't gonna do what he say.' ... [Complainant] kept saying he don't have to do it."
M1 stated that on July 21, 2010, he was working at the Livonia facility and Complainant came in to speak with a named mechanic. M1 stated that Complainant and the named mechanic "were whispering and then the whispering start escalating. I couldn't see because I was trying to get a starter off so I was having a hard time getting the bolt out, but they kept looking back at me. [Mechanic] would look over his shoulder, then [Complainant] would turn right and look me square in his face." M1 stated at that point he felt "very, very uncomfortable. And I was working harder, faster than I normally do to get the starter off so I can hurry up and get it out of there." M1 stated that after he took out the bolt, he walked away from his work area to get another tool and when he came back and "that's when it all broke loose." M1 stated that Complainant "said, you fucking idiot. Why you gotta act like a fucking idiot? You motherfucking idiot.' I immediately went to [Supervisor's] office."
M1 stated that he went to the supervisor's office because he wanted to let him know that Complainant "is cussing my out, thinking he's gonna kick my butt, he's gonna beat me up. So when I went to grab the door...when I pushed the door open, [Complainant's] hand was right above my hand. I'm looking right at his hand. He helped me open up the door. He was still yelling in my left ear, 'you fucking idiot. You motherfucking idiot. When I took two steps in, [Supervisor] was in his office, the door was halfway shut. [Supervisor] pushed the door back and slid his chair back. [Complainant] saw him and was still cussing. I just looked at [Supervisor] in shock and I walked out. When I walked out the other door to go back out to the work area, he was still cussing, 'you fucking idiot. You're all a bunch of fucking idiots.' I went right over to keep doing the start and he was still cussing at [Supervisor] and [Supervisor] put him out that day."
M1 stated that he continued to work that day "in an incapacitated manner. I couldn't really work up to my potential." M1 stated that he later sought a Personal Protection Order "'cause I was afraid. . . afraid [Complainant] was gonna do something to me because he knew where I lived at and he said he was gonna get me, and I figure this was just some more stemming to it." M1 stated however the Personal Protection Order ended up appealed by Complainant because he "wrote down on the bottom that it never happened. He lied and said it never happened, we don't even work with each other."
The record contains a copy of the August 5, 2010 Notice of Removal. Therein, the supervisor placed Complainant on notice that he would be removed from Agency employment on September 11, 2010 for conduct unbecoming a Postal employee on July 21, 2010. The Supervisor determined that Complainant was in violation of Sections 665.11 "Loyalty," 665.13 "Discharge of Duties," 665.15 Obedience to Orders," 665.16 "Behavior and Personal Habits," 665.24 "Violent and/or Threatening Behavior," and 665.6 "Disciplinary Action" of the Employee and Labor Relations Manual.
The supervisor also stated that Complainant was in violation of Section 112.25 of the Handbook M-41 City Delivery Carriers Duties and Responsibilities. Section 112.25 states "be prompt, courteous, and obliging in the performance of duties. Attend quietly and diligently to work and refrain from loud talking and the use of profane language."
Complainant, on appeal, argues that the AJ erred finding no discrimination. For instance, Complainant argues that the supervisor and the Acting Manager of the Detroit District Vehicle Maintenance (VMF) did not testify and that their affidavits should not have been accepted. Specifically, Complainant states "neither of [Acting Manager of the Detroit VMF] sworn affidavits should not have been admissible later in the [AJ's] decision against me, since [neither] me nor my attorney were never afforded the opportunity to question or rebuttal his lies in his sworn affidavit provided in the EEOC case file. That along would have given us the proof that [Acting Manager] was a liar and anything he said was clearly untruthful, dishonest and shoe clear discriminating actions towards me along with [Supervisor]."
The instant appeal followed.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.2
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
May 16, 2013
__________________
Date
1 The record reflects that as a result of a grievance Complainant filed, the arbitrator upheld the emergency placement in an off-duty status. However, the arbitrator reduced the Notice of Removal to a 14-day suspension. The record further reflects that Complainant received all his back wages, except for the emergency placement and the 14-day suspension, as well as lost sick leave and benefits.
2 On appeal, Complainant does not challenge the October 7, 2010 partial dismissal issued by the agency regarding one other amended claim (that he was discriminated against on the basis of retaliation when on August 30, 2010, he became aware that the supervisor gave his personal information to a co-worker which he believes was a result of an unidentified man showing up at his door on August 28, 2010). Therefore, we have not addressed this issue in our decision.
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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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