Dennis L. Stephens, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 28, 2007
0120065142 (E.E.O.C. Feb. 28, 2007)

0120065142

02-28-2007

Dennis L. Stephens, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Dennis L. Stephens,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200651421

Agency No. 4E-640-0088-05

DECISION

On September 14, 2006, complainant filed an appeal from the agency's

August 25, 2006 final decision concerning his equal employment

opportunity (EEO) complaint claiming 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.; Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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).

During the relevant time, complainant worked as a City Letter Carrier,

at the Kansas City Main Post Office, in Kansas City, Missouri. Believing

that he was subjected to discrimination based on race, color, sex, age,

disability and in reprisal for prior protected activity, complainant

contacted the EEO office. Informal efforts to resolve complainant's

concerns were unsuccessful. On October 31, 2005, complainant filed

the instant formal complaint.

In a notice of "Partial Acceptance," dated November 14, 2005, the agency

framed the claims as follows:

(1) on July 29,2005, you received a Letter of Warning (LOW) for Failure

to Follow Instructions;

(2) on August 3, 2005, you were given a job discussion for being outside

of your vehicle with your shoe off during your break;

(3) on August 3, 2005, you were not allowed to smoke in your vehicle

during your street break;

(4) on August 4, 2005, management interrupted you several times while

you were verifying your mail count and then failed you for

not making standard by six minutes;

(5) on August 9, 2005, your medical documentation was not approved and

you were not provided information what was needed to be approved;

(6) on August 10, 2005, and August 11, 2005, your route was

counted;

(7) on August 11,2005, you were told not to use your vehicle inspection

check list while inspecting your vehicle;

(8) on August 12, 2005, you were instructed not to use your cellular

phone outside of your vehicle while on lunch break;

(9) on August 16, 2005 and August 17, 2005, you were not allowed to see

a union steward;

(10) on August 19, 2005, you were the only carrier instructed to leave

your scanner in your satchel and not to look at the clock on it;

(11) On August 19, 2005, you were not allowed to complete your

vehicle inspection;

(12) on September 2, 2005, you were accused of extending your

vehicle inspection;

(13) on September 2, 2005, a street observation was performed on

you;

(14) on September 5, 2005, you were accused of extending your

vehicle inspection; and

(15) on September 6, 2005, you were issued a Notice of Suspension (No

Time Off) for 14 days or less for improper conduct/discarding mail and

failure to perform your duties in a safe manner.

In this "Partial Acceptance," the agency accepted for investigation

fourteen claims. However, the agency dismissed claim (9) for failure

to state a claim. The agency determined that the claim, regarding

complainant's inability to see a union steward, was a matter "best

considered through the grievance procedure."

At the conclusion of the investigation, of the remaining fourteen claims,

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

withdrew his request.2 Consequently, the agency issued a final decision

on August 25, 2006, pursuant to 29 C.F.R. � 1614.110(b) concluding that

complainant failed to prove that he was subjected to discrimination.

As an initial matter, the agency reiterated the dismissal of claim (9)

for failure to state a claim. The agency incorporated by reference the

decision set forth in the November 14, 2005 document.

The agency then determined that claims (2) - (4), (6), (7), and

(10) - (13) also failed to state a claim. The agency determined

that complainant did not allege a personal loss or harm regarding a

term, condition, or privilege of employment regarding these claims.

The agency further determined that many of the matters address in the

claims reflected that the complainant was merely being supervised and

instructed, without any direct or personal loss.

Next, the agency evaluated whether or not complainant established

a prima facie case of race, color, sex and age discrimination with

respect to claims (1), (5), (8), (14) and (15). While finding that

complainant established the first two elements of a prima facie case,

the agency concluded that complainant failed to show similarly situated

individuals outside his protected groups were treated differently.

More specifically, in claim (1), the agency determined that there was no

evidence that four comparative employees identified by complainant had

failed to deliver "vacation hold" mail on the "resume delivery" dates,

as claimant had done, prompting the LOW. Further the agency identified

several instances where other employees were disciplined for failure

to follow instructions. Regarding claims (5), (8), (14), and (15),

the agency stated that complainant did not identify similarly situated

employees outside of his protected groups. Regarding the basis of age,

the agency noted that there was no evidence in the record that age was

a determinative factor in the agency's actions.

Even assuming that complainant had presented a prima facie case, the

agency found that management presented legitimate, non-discriminatory

reasons for its actions. In claim (1), complainant contends he was

discriminatorily issued a LOW. According to management, complainant

was disciplined because he left mail in his case beyond the allotted

time. With respect to claim (5), the Acting Station Manger testified

that medical documentation was required and the documents provided

by complainant did not adequately explain his illness or injury to

indicate why he was unable to perform his duties. Regarding claim (8),

the Acting Station Manager stated that complainant was not at lunch

when he instructed not to use his cellular telephone, but was instead

walking across the street. Further, the agency stated that the action

was not due to his protected bases. Regarding claim (15), management

explained that the Notice of Suspension was issued because first class

mail had been found in UBBM waste mail and complainant had been observed

talking on his phone while crossing the street. 3

Regarding the basis of disability, the agency determined that complainant

did not establish a prima facie case. The agency noted that records

indicated that the Office of Workers Compensation accepted a claim from

complainant for Post Traumatic Stress Disorder in 1987; that complainant

was diagnosed with asthma in 1993; and that he submitted documentation

regarding an ankle injury. However, the agency found that there was no

evidence that any of these purported impairments substantially limited a

major life activity during the relevant time. Moreover, the agency noted

that complainant himself testified that he does not need an accommodation

to perform his duties. According to the agency, management was unaware

of any alleged disability and did not regard complainant as disabled.

With respect to any claim of disparate treatment, the agency stated that

even assuming complainant was a qualified individual with a disability,

he did not identify a similarly situated individual outside his protected

class that was treated differently.

Regarding the basis of reprisal, the agency determined that there was

no evidence of any prior EEO activity by complainant. The agency found

unpersuasive complainant's assertion that he was subjected to reprisal

due to his current EEO claims, as well as to attempts to resolve the

instant complaint through mediation. The agency found that mediation

attempts were conducted weeks after the alleged discrimination purportedly

occurred, and further found that there is no evidence that management was

aware of the instant complaint before that time. The agency concluded

that complainant failed to present a causal link between his EEO activity

and the alleged actions.

Finally, the agency stated that complainant's attempt to establish a

prima facie case of a hostile work environment also failed. The agency

found that there was no evidence that complainant was harassed, but

rather found that the described incidents concerned verbal exchanges

lacking any concrete effect.

On appeal, complainant challenges the agency's dismissal of a portion of

his complaint, as well as the finding of no discrimination. Regarding

claims (2), (3) (4), complainant argues that the events caused him stress

and public humiliation, thereby creating a hostile work environment.

Regarding claims (5), (7), (8) and (9), complainant contends he was

denied leave, and "personal rights". Regarding claim (15), complainant

asserts that "there was no conclusive evidence" that he was at fault

for discarding the mail.

Finally, complainant states that the "November 14, 2005 accusation of

charge should not have been dismissed . . . ." Enclosing a copy of a

July 12, 2006 letter from the EEOC Administrative Judge assigned to his

case, complainant contends that her ruling on that date was unfair.

In response to complainant's appeal, the agency reiterates the reasoning

set forth in its decision. It asks that the Commission affirm the final

decision.

Claims (2) -(4), (6), (7), and (9) through (13)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she

has been discriminated against by that agency because of race, color,

religion, sex, national origin, age or disabling condition. 29 C.F.R. ��

1614.103, .106(a). The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

The Commission agrees with the agency that the events described in

claims (2) - (4), (6), (7), and (9) - 13) fail to state a claim.

In claim (2) complainant contends he was given a job discussion

for being out of uniform (being outside of his vehicle without his

shoe on). We have consistently held that official discussions alone

do not render an employee aggrieved. See Miranda v. United States

Postal Service, EEOC Request No. 05920308 (June 11, 1992); Devine

v. United States Postal Service, EEOC Request Nos. 05910268, 05910269

and 05910270 (April 4, 1991). In the remaining claims, complainant has

simply presented incidents wherein he was instructed or guided by his

superiors. Complainant has not show that the events were followed by

any concrete action. Moreover, the alleged agency actions were not of

a type reasonably likely to deter complainant or others from engaging

in protected activity. Moreover, we find that the above referenced

dismissed claims, even if proven to be true and viewed in a light most

favorable to complainant, would not indicate that complainant has been

subjected to harassment that was sufficiently severe or pervasive to alter

the conditions of employment. See Cobb v. Department of the Treasury,

EEOC Request no. 05970077 (March 13, 1997).

The Commission determines that the agency's decision to dismiss claims

(2) - (4), (6), (7), and (10) - (13) was proper and is AFFIRMED.

The Commission notes that the agency analyzed some of the dismissed claims

on the merits. However, because of our determination that these claims

were properly dismissed for the reasons set forth above, we decline to

address the agency's merits analysis regarding these claims.

Claims (1), (5), (8), (14) and (15)

As a threshold matter, the Commission discerns that there is nothing

in the record that supports a finding that the AJ was not within her

discretion to cancel the hearing, as reflected in her correspondence to

complainant dated July 12, 2006. While complainant raises an argument

on this matter on appeal, the Commission notes that on July 14, 2006,

complainant indicated his interest in withdrawing his hearing request

without further elaboration. We will therefore turn to the agency's

finding of no discrimination with regard to the subject claims.

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). He

must generally establish a prima facie case by demonstrating that

he 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. 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); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

With respect to complainant's claims of discrimination based on race,

color, sex, age and retaliation, we find that he has failed to meet

his burden. The record shows that the agency has presented legitimate,

non-discriminatory reasons for its actions. While complainant disputes,

for example, that he was the one that discarded mail (claim (15)), he

has not shown that the agency's reason was pretext for discrimination.

Complainant has not provided any evidence showing a nexus between his

protected classes and the alleged events.

Further, with respect to the basis of disability, complainant himself

attests that he does not require any accommodations to perform his

duties. To the extent that complainant may have presented a claim of

disparate treatment, based on disability, we again find that he has

not satisfied his burden of proof. Even assuming, for the purposes of

analysis only, that complainant is indeed a qualified individual with

a disability, the record does not show that he was treated differently

than similarly situated individuals outside of his protected class.

Moreover, complainant has not established that the agency's actions were

motivated by discriminatory animus.

Based on a thorough review of the record, we AFFIRM the agency's

decision finding no discrimination regarding claims (1), (5), (8),

(14), and (15).

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 28, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 The record contains a letter dated July 12, 2006, wherein the AJ

informed complainant that the hearing was cancelled "as a sanction for

complainant's failure to submit his pre-hearing report." However, the

record also contains a document date July 14, 2006, wherein complainant

stated that he wanted to ". . . respectfully withdraw my request for a

hearing" and made no reference to the AJ letter dated two days earlier.

3 In its final decision, the agency inadvertently refers to the suspension

claim as (14), rather than claim (15).

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0120064328

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120065142