01a46036
09-09-2005
David S. Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David S. Lee v. United States Postal Service
01A46036
September 9, 2005
.
David S. Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46036
Agency No. 4F-907-0186-03
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a City Letter Carrier at the agency's Compton Post Office facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on August 6, 2003, alleging that he was discriminated against
on the bases of race (Korean) and disability (speech impediment)<1> when:
(1) Since complainant's assignment to the Compton Post Office he has
been subjected to continuous harassment from his co-workers;
(2) On a continuing basis, he has not been provided eight hours of
work; and
On July 10, 2003, the complainant was issued a Letter of Warning
for Failure to Follow Instructions and on July 14, 2003, a Notice of
7-Day No Time Off Suspension for Failure to Follow Instructions and
Unsatisfactory Work Performance.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to prove a prima
facie case of race and disability discrimination because he failed to
establish a difference in treatment than similarly situated individuals
not within his protected class. The agency further concluded that,
assuming arguendo that complainant established a prima facie case
of discrimination, he failed to present evidence that the agency's
articulated reasons for its actions were a pretext for discrimination.
On appeal, complainant argues that the agency erred in finding no
discrimination. The agency provided no response to complainant's appeal.
As an initial matter we note that, as this is an appeal from a FAD 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. 29 C.F.R. �
1614.405(a).
Hostile Work Environment
In order to prevail on a claim of harassment, 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 working environment; and (2) the harassment was based
on his membership in a protected class. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 at 3, 6 (March 8, 1994).
The Commission notes that unless the conduct is severe, a single group
of isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Complainant alleged that over the past year supervisors and employees
repeatedly made unwelcome comments to him, including one instance
involving co-workers who allegedly mocked complainant using an offensive
Korean word.<2> Complainant also alleged other incidents of harassment,
including an incident involving an employee who allegedly pushed him with
a tray and hit him with magazines.<3> Upon review, taking into account
all of the claims alleged in the complaint, we find that complainant has
not shown that the actions alleged were sufficiently severe or pervasive
as to constitute hostile work environment harassment.
Disparate Treatment
To prevail in a disparate treatment claim such as this, 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. Furnco Construction
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. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
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. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, we find that the agency's decision was proper. Assuming
arguendo that the complainant established a prima facie case of race
and disability discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect
to claim (2), the record contains an affidavit from Postmaster (African
American, no disabilities) indicating that complainant had restrictions
that were not job-related. He testified that complainant was provided
with work within those restrictions, and, on the days complainant worked
less than eight hours, complainant refused the work that was offered.
With respect to claim (3), the record reveals that complainant was
involved in a verbal altercation with Co-worker prior to July 10, 2003.
After an investigation determined that neither employee violated Postal
Service policies, both employees were instructed by management not
to exchange any verbal comments and to report any problems between
them to management. On July 10, 2003, Supervisor (African American,
no disabilities) issued complainant a Letter of Warning for Failure to
Follow Instructions to complainant after he was involved in another
verbal altercation with Co-worker despite having been instructed to
avoid such confrontations. The record indicates that on July 14,
2003, complainant was issued a Notice of 7-Day No Time Off Suspension
for Failure to Follow Instructions and Unsatisfactory Work Performance.
The record reflects that Supervisor considered complainant's past record,
including the Letter of Warning for Failure to Follow Instructions,
in determining the proper course of action to pursue in issuing the
suspension. We find complainant has failed to offer any evidence to show
that the agency's articulated reasons for the agency's actions were more
likely than not a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and evidence not specifically addressed in
this decision, the agency's final decision finding no discrimination
is AFFIRMED.
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
September 9, 2005
__________________
Date
1For purposes of this decision the Commission assumes without finding that
complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
2We note that complainant submitted supplemental information
after he filed an appeal listing multiple new allegations of
harassment and alleging that some of the initial allegations occurred
repeatedly. However, the appeal brief was untimely filed, and these
incidents were not evident in the record prior to submission of the
untimely appeal brief.
3The record contains testimony from a supervisor indicating that he
investigated the situation and determined that the pushing incident was
an accident.