0120130191
03-05-2013
Elvin S. Bridgewater, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Elvin S. Bridgewater, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120130191
Hearing No. 510-2012-00085X
Agency No. 4G-330-0106-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 13, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of 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.
BACKGROUND
During the period at issue, Complainant worked as a Manager Customer Services, EAS-21, at the Agency's Opa Locka Station in Miami, Florida.
On July 5, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (partial paralysis) and age (over 40) when:
1. on or about May 2, 2011, he was involuntarily reassigned to the Opa Locka Station;
2. on May 3, 2011 through May 5, 2011, he was harassed by being sent to Opa Locka Station, having his schedule changed, and with regard to his performance;
3. he was issued a Notice of a Proposed Letter of Warning in Lieu of a 7-Day Suspension; and
4. on June 8, 2011, he was charged Absent Without Leave (AWOL) after being placed on an emergency placement.1
Following a hearing held on June 28, 2012 and July 30, 2012, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not establish a prima facie case of disability and age discrimination.2 The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on disability 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 determined that the exchanges between Complainant and his supervisor "although somewhat robust, involved nothing more than common workplace occurrences. Managing or otherwise overseeing subordinates will sometimes to tension because a subordinate may not want to be told what to do or how to do it."
The AJ noted that in April 2003, Complainant experienced a ruptured aneurysm resulting in a left hemiparesis, which affects one side of his body and his gait. The AJ further noted that Complainant is able to walk without the assistance of any devices. The AJ noted, however, Complainant walks much slower than the average person. The AJ also noted that Complainant has hypertension and when subjected to stress, Complainant's blood pressure becomes elevated.
The AJ noted that as of January 2011, Complainant's usual assignment was at the Agency's Carol City Post Office as a Manager. According to Complainant, he did not require any accommodation to perform his job duties. The AJ noted that the Carol City Post Office where the Complainant had been assigned, is a larger facility than the Opa Locka Station. The AJ noted that the Carol City Station is approximately three times larger than the Opa Locka Station. Complainant asserted that the reasonable accommodation he requested was to be treated fairly and with respect.
The AJ noted that in regard to claim 1, the Postmaster, also Complainant's immediate supervisor (supervisor), testified that he reassigned Complainant to the Opa Locka Station because of his performance and his complaints of fatigue. The AJ noted that in regard to Complainant's allegations that the supervisor did nothing to assist him with closing of the gate and checking vehicles at the Opa Locka Station, Complainant acknowledged during his testimony that a named employee assisted him by showing him what had to be done to close the station.
With respect to Complainant's allegation that the named employee was instructed by the supervisor not to assist Complainant closing the gate, the AJ noted that the supervisor testified that Complainant had problems with his performance which he had to address while Complainant was at the Carol City Station. Complainant continuously complained of fatigue and indicated he could not walk from one point to another without having to constantly stop.
Regarding claim 2, the AJ noted that during his testimony, Complainant stated that the harassment did not consist of having been informed that he was going to be reassigned to the Opa Locka Station. Rather, Complainant determined that he was harassed by the abrupt manner in which his supervisor told him he was going to be reassigned. The AJ further noted when asked specifically to identify the alleged harassment said to have occurred on May 3 and 4, 2011, Complainant stated that he could not recall.
Regarding claim 3, the AJ noted that Complainant was issued a Letter of Warning because on May 16, 2011, when he was responsible for closing the Opa Locka Station, he did not ensure that the alarm was set and the vault closed and locked. The AJ noted that the Postal Police had responded to the alarm at the Opa Locka Station.
The supervisor testified that on July 15, 2011, Complainant received a proposed Letter of Warning in lieu of a 7-Day Suspension "because that was the next step being progressive." Specifically, the supervisor stated that on May 16, 2011, Complainant did not ensure that the vault was closed and locked, and that he did not ensure that the alarm was set. The supervisor further stated that the Opa Locka Station vault is the same vault set-up as the Carol City Post Office's vault.
The AJ noted that in his testimony, the supervisor stated that the Postal Police have a system in place that notifies them when an alarm that is set is triggered, or when an alarm is not set by a certain time. The supervisor further stated that the Postal Police respond under both circumstances.
The record reflects that on August 29, 2011, the supervisor sent Complainant a decision letter stating "after earnest though and consideration, I find that the evidence of record clearly supports this action. As stated in the proposed action, you were responsible for closing the Opa Locka Post Office. You failed to ensure the vault was closed and locked and failed to ensure the alarm was set. Additionally, you certified that the building was secured when it was not secured."
Regarding claim 4, the AJ noted that some time between 2:00 p.m. and 3:00 p.m. on June 8, 2011, Complainant received information that his brother had been hospitalized. According to Complainant, he informed the supervisor that he was going to see his brother; however, the supervisor screamed at him saying that he did not want to go over to the Opa Locka Station from the Carol City Post Office. Complainant stated that he informed the supervisor that he would do as much as he could and return to work as fast as he could. Complainant testified that he returned to work some time after 5:00 p.m. and found the supervisor and a named clerk counting money. Complainant alleged that the supervisor asked to speak with him privately and that he was going to write him up. Complainant further alleged that after he told the supervisor that he was going home and started to walk, the supervisor told him to come back.
Further, Complainant stated that he told the supervisor if he wanted documentation he would get it for him and the supervisor told him he was threatening him. Complainant stated that the supervisor then told him he was going to place him on a 16.7 which is an emergency suspension, and remove him from the premises.
The AJ noted that the supervisor testified that when Complainant returned to work after visiting his brother, he asked Complainant why he let a named employee work overtime in the office without first informing him. The supervisor stated that Complainant became upset and said "you are all after me; you're always after me." The supervisor denied telling Complainant that he was being placed on a 16.7. Specifically, the supervisor stated that he told Complainant that if he kept threatening him, he would place him on a 16.7. The supervisor stated that Complainant then started walking away from him at which point the supervisor asked Complainant for the keys to the building. The supervisor stated at that point, Complainant headed toward the dock area leading to the employee parking lot. The supervisor stated that he followed him as far as the dock area while Complainant went to his vehicle to get the keys, and returned to the dock and threw the keys at him. Complainant then left the premises on his own.
The AJ noted that Complainant did not show up for work the next day. However, Complainant left the supervisor a telephone text message indicating he expected to be placed on administrative leave because he had been placed on a 16.7. According to the supervisor, he stated that he attempted to contact Complainant to let him know that he had not been placed on a 16.7. The supervisor stated that he charged Complainant's absence as AWOL because he left work without authorization, did not report to work, and had not submitted any request for leave.
The AJ noted that in her testimony, the clerk stated that she and the supervisor were at the Opa Locka Station counting money when Complainant returned to the facility. The Clerk testified that she heard "something going on. And after a while, after calling the Postmaster, after calling him because we were sitting down counting money, after calling him and he didn't respond. I got up" to look for him. The Clerk further stated that when she got up she heard the supervisor "talking to [Complainant] and he was saying, 'Are you threatening me? Are you threatening me? You're outta here. You're outta here on a 16.7."
Complainant, on appeal, argued that the AJ erred finding no discrimination. For instance, Complainant argued that the AJ found the supervisor credible "despite being contradicted by the Appellant and several witnesses, finding the Appellant was not a victim of discrimination." Complainant further argued that his supervisor harassed him by assigning him duties that were beyond his medical restrictions, scrutinized his performance, and made him feel incompetent by repeatedly telling him that he could not do the job and that he should consider retiring form Agency employment.
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.3
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
March 5, 2013
__________________
Date
1 The record reflects that claims 2 and 4 were later amended to the instant formal complaint.
2 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
3 On appeal, Complainant does not challenge the July 13, 2011 partial dismissal issued by the Agency regarding another claim (that he was discriminated against on the bases of disability and age when on May 5, 2011, the supervisor made deformational comments and threatened to downgrade him and to send him to remedial training). 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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