0120080736
11-18-2010
Gary McDowell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Gary McDowell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120080736
Hearing No. 430-2006-00121X
Agency Nos. 4K-230-0178-05, 4K-230-0210-05
DECISION
On November 26, 2007, Complainant filed an appeal from the Agency's
October 26, 2007, final order 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., 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 Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the EEOC Administrative Judge (AJ)
properly found that Complainant had withdrawn two of his claims, and
consequently dismissed them; and (2) whether the AJ's determination,
that Complainant failed to establish either that the Agency's actions
were motivated by discriminatory animus or were sufficiently severe and
pervasive to amount to harassment, is supported by substantial evidence
of record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Modified Distribution Clerk at the Agency's Forest Hill Station in
Richmond, Virginia. Complainant began his employment with the Agency as
a carrier in 1985. Complainant was offered and accepted the Modified
Distribution Clerk position in July 1999. The July 1999 offer stated
that Complainant was restricted from driving and standing or walking for
more than 90 minutes at a time. The duties of the modified position
included casing mail, filing box receipts, answering the telephone,
processing box rents, and processing change of address information.
On August 8, 2005, Complainant signed an Offer of Modified Assignment
in which he was assigned to case mail for four to five hours per
day and deliver mail for five to seven hours per day. Additionally,
the assignment restricted Complainant from driving a postal vehicle.
Complainant's placement in the Modified Clerk position that he had
accepted in July 1999 subsequently was reaffirmed by the Agency on August
21 and 31, 2005.
On December 14, 2005, Complainant filed a formal complaint (Agency
Case No. 4K-230-0178-05) in which he alleged that he was subjected to
discrimination on the bases of race (Black), color (brown), religion
(Catholic), sex (male), age (born in 1959), disability, and in reprisal
for prior EEO activity1 when: (1) on August 16, 2005, he was forced
to accept a Modified Carrier position with physical limitations, and
(2) on August 22, 2005, he was ordered to work outside of his medical
restrictions.
On February 21, 2006, the Agency amended Complainant's complaint to
include the additional claims (filed as Agency Case No. 4K-230-0210-05)
that he was subjected to discrimination on the bases of race, sex,
disability, and reprisal when:
3. On February 6, 2006 and continuing, management ordered him to
perform work that aggravated his physical and mental disabilities;
4. On February 6, 2006, Complainant's supervisor swung a
yardstick at him;
5. On February 6, 2006, he was told to operate a machine that was
outside his medical restrictions;
6. On February 6, 2006, Complainant's supervisor harassed him when
she grabbed mail from his hands and commented, "You don't know what you
are doing," and said "Do it right;" and
7. On February 7, 2006, Complainant's supervisor said, "You're
about to get it now," and punched him in the head.
At the conclusion of the investigation, the Agency provided Complainant
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, which the AJ held on September 18 and 19,
2007.
During the hearing, Complainant testified that in 1991, he sustained
back injuries in a postal vehicle accident. Complainant stated that,
after the accident, he became a Limited-Duty Clerk with lifting and
walking restrictions. Complainant further stated that after the accident,
he developed a "phobia" of driving a postal vehicle. Hearing Transcript
(HT), p. 18.
Complainant testified that on August 8, 2005, the Manager presented him
with an Offer of Modified Assignment. The record reveals that the August
8, 2005 offer was for a modified carrier assignment that involved casing
mail for four to five hours per day and delivering mail for five to seven
hours per day. Exhibit C-7. The assignment stated that Complainant
was restricted from driving an Agency vehicle.
Complainant stated that he was "under the gun" and told management that
he would try working the modified assignment. HT, p. 36. Complainant
further stated that he reminded the Manager that he had a standing and
walking restriction, but the Manager responded that he did not see any
documentation on the CA-17 form to substantiate Complainant's claim.
Complainant testified that he was injured while working on the modified
assignment.
Complainant further stated that the Manager ordered him to accept
the offer. Complainant testified that on the offered position, he
did not stand while casing mail at the station, but he had to walk to
deliver the mail. Complainant further testified that, on August 9, 2005,
the Manager informed him that he would be provided with a driver when
delivering mail. Complainant testified that despite the modified job
offer, he never cased mail, but delivered mail by parking and looping.
He stated that his medical restrictions were violated because he had to
climb stairs and walk for more than 90 minutes per day. Complainant
further testified that he did not drive the route. Complainant stated
that he was worked beyond his restrictions by delivering the mail until
August 25, 2005. Complainant stated that he was not asked to deliver
mail in Autumn 2005 or early 2006.
Complainant stated that in February 2006, his supervisor ordered him to
work on the carrier barcode sorter machine. He stated that he used a
chair to work on the machine and had to continuously operate the machine
for about four hours per day. He stated that working on the machine
aggravated his condition.
Complainant further testified that on February 6, 2006, his supervisor
swung a yardstick2 at him while he was working with parcels. Complainant
testified that he could feel the wind from the yardstick and would have
been hit by the stick if he had not moved to avoid it. Complainant stated
that he did not report the incident to anyone.
Complainant stated that his supervisor ordered him to work on the machine,
but Complainant told her that he could not operate the machine because
of problems with his feet. Complainant stated that his supervisor ordered
him to work on the machine, which he did. In an investigative affidavit,
Complainant also stated that later on February 6, 2006, his supervisor
grabbed mail from his hands, constantly yelled at him, and stated,
"[you] don't know what you are doing", "do it right," and "you're doing
it wrong!" Affidavit A, p. 13.
Complainant testified that on February 7, 2006, he and his supervisor
engaged in a "back and forth" discussion, and when he leaned over, she
punched him in the head. HT, p. 88. "I was leaning over like this and
somebody hit me like that . . . I seen the shadow come over and boom,
I'm looking up. I'm like, she just hit me," Complainant testified. HT,
p. 91. He stated that he asked her why she punched him, but she denied
that she hit him. Complainant stated that a coworker (CW) witnessed the
incident, but he did not report the incident to anyone until he filed
his EEO complaint.
The Forest Hill Station Manager testified that he was aware of
Complainant's prior EEO activity at the time of the relevant actions.
He also testified that in Summer 2005, the Injury Compensation and
Labor Relations Office transferred or excessed all rehabilitation
carrier craft employees who had been reassigned into a clerk position
back into their original jobs as city letter carriers. He stated that
he directed Complainant to return to the carrier craft and deliver mail
because Complainant's CA-17 form stated only that he was restricted from
driving a postal vehicle.
The Manager further testified that, because of the excessing, Complainant
was reassigned to deliver mail, although a driver was provided for him.
He stated that he never assigned Complainant a complete route to deliver
and broke up his route in a manner that he should have been able to
complete in "an hour here, an hour-and-a-half there." HT, p. 208.
However, the Manager stated that Complainant sometimes worked longer on
his route because he was not very productive in delivering his route.
The Manager further testified that he assigned Complainant to deliver
mail based upon his latest CA-17 form and Complainant's accepted August 8,
2005, modified assignment, which only restricted Complainant from driving
an Agency vehicle. He stated that he was aware that Complainant's
supervisor swung a yardstick at Complainant but was unaware that she
struck him on the head.
Complainant's supervisor testified that during the relevant time period,
she was aware of Complainant's prior EEO activity. She stated that
she did not hit Complainant, and if she had done so, the police and
union officials would have been notified. She further testified that
she did not swipe at Complainant with a yardstick. The supervisor also
testified that although she required Complainant to work on the machine
in February 2006, she allowed him to use a stool while working on the
machine. The supervisor stated that once the machine was initially
loaded, employees could sit and operate the machine. She stated that
Complainant worked on the machine for two to three hours per day and
used a stool the entire time.
Additionally, in an investigative affidavit, the supervisor stated that
she may have said to Complainant, "That's not the way you were trained
to run the machine, run the machine the way you were trained to."
Affidavit E, p. 1. She further stated that she did not recall ever
grabbing mail from Complainant or telling him to "get it now." Id.
CW testified that she did not witness Complainant's supervisor hit
Complainant, but has witnessed Complainant's supervisor order Complainant
to work the machine. She stated that Complainant's supervisor had a
"little bit more aggressive" relationship with Complainant than she
had with other employees. HT, p. 125. However, she stated that
the Complainant's supervisor's demeanor was "always abrupt, loud,
unprofessional, demeaning with directions." Id.
A Clerk testified that during the two-week period that Complainant
worked on the machine, he used a stool that allowed him to work within
his restrictions. She stated that she did not witness Complainant's
supervisor swipe at him with a yardstick or hit him.
The record contains a copy of an Office of Workers' Compensation Programs
(CA-17) form dated January 2, 2004, from Complainant's physician.
Affidavit A, p. 37. On the form, the physician stated that Complainant
could not lift more than 25 to 40 pounds; could not sit, stand,
or walk more than four hours per day; and, could not twist, grasp,
or pulling/pushing more than 15 minutes per day. Additionally, the
physician stated that Complainant was allowed to sit, stand, and walk as
tolerated, and the restrictions were permanent. In a CA-17 form dated
July 29, 2004, the physician restricted Complainant from standing and
walking more than two hours per day. Exhibit C-5. Further, in a CA-17
form dated November 18, 2004, the physician stated only that Complainant
was restricted from driving a postal vehicle. Exhibit C-6.
The record also contains a copy of a statement from Complainant's
physician dated August 29, 2005. Exhibit 7, p. 3. In the statement,
Complainant's physician informed the Agency that Complainant
was restricted from lifting or carrying more than 25 pounds
and could not be on his feet for more than 20 minutes per hour.
On September 20, 2007, the Agency submitted a motion to dismiss claims 1
and 2 to the AJ. The Agency maintained that Complainant withdrew these
claims on September 16, 2005. Complainant opposed the dismissal.
The AJ's Decision
The AJ issued a decision on October 23, 2007. In the decision, the AJ
dismissed claims 1 and 2 on the basis that Complainant withdrew these
claims on September 16, 2005. With respect to remaining claims 3 through
7, the AJ concluded that, based upon the record and credibility of the
witnesses, Complainant failed to prove that the Agency was motivated
to discriminate against him on the bases of race, sex, disability, or
prior EEO activity. The AJ further concluded that the alleged actions
were not sufficiently severe or pervasive to constitute a hostile work
environment. The Agency subsequently issued a final order that fully
adopted the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when she dismissed
claims 1 and 2 and found no discrimination with respect to claims 3
through 7. Complainant contends that the signature on a withdrawal form
is not his, and the AJ failed to give proper weight to evidence that
his signature was forged on the form. Complainant further reiterates
allegations made during the hearing and investigation. The Agency
requests that we affirm its final order.
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive for 29 C.F.R. Part 1614 (EEOC MD-110),
Chapter 9, at � VI.B. (November 9, 1999).
Withdrawal of Claims 1 and 2
The record contains a September 16, 2005, form signed by Complainant
on which he ostensibly notified the Agency that he withdrew claims 1
and 2. Complainant contends that he did not withdraw claims 1 and 2,
and that the signature on the withdrawal form is not his signature.
Complainant contends that he submitted samples of his writing to a
handwriting expert for analysis and was awaiting the expert's report.
We note that Complainant failed to provide the Commission with the
report from the handwriting expert. Moreover, even to non-expert eyes,
the signature on the withdrawal form is consistent with Complainant's
signature on other record documents, including the Formal Complaint,
Informal Complaint, Request for Mediation, and various other documents.
Thus, we are persuaded that Complainant withdrew claims 1 and 2.
Complainant contends that the Agency should have been barred from raising
the issue of withdrawal after the hearing because of the doctrine
of laches. However, the doctrine of laches is an equitable defense
by which a Complainant's failure to diligently pursue claims within
a reasonable time period can preclude consideration of those claims.
Harris v. U.S. Postal Serv., EEOC Request No. 05950268 (Sept. 8, 1995).
The doctrine of laches does not apply to this case because it does not
involve Complainant's failure to diligently pursue his claims within
a certain time period. Further, this is not a case wherein the Agency
dismissed claims on the basis of untimeliness. See McGrady v. Health and
Human Servs., EEOC Appeal No. 01985084 (Sept. 4, 2001) (holding that the
agency waives timeliness arguments when not addressed in final decision).
Moreover, contrary to Complainant's assertion, there is no requirement
that the issue of a Complainant's withdrawal be raised before the hearing.
Thus, we find that the AJ properly dismissed claims 1 and 2 as withdrawn
matters.
Claims 3 through 7
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden
of persuasion, and it is his obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks. 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In this case, we assume without so finding that Complainant is an
individual with a disability and established a prima facie case of
discrimination. Nonetheless, we find that the Agency provided legitimate,
non-discriminatory reasons for its actions. Specifically, Complainant's
supervisor testified that she ordered him to work on the carrier barcode
sorter machine but allowed him to sit on stool while operating the
machine, which allowed him to work within his restrictions. She further
testified that she did not swing a yardstick at or hit Complainant.
Additionally, the supervisor denied grabbing mail from Complainant's hand
and telling him to "get it now," but may have told him that he was not
operating the machine in a proper way. Upon review of the record, we find
that Complainant failed to establish, by a preponderance of the evidence,
that the Agency's articulated reasons were pretext for discrimination.
In so finding, we note that the AJ found the supervisor's testimony
on these matters to be credible. Moreover, contrary to Complainant's
assertion that C witnessed the supervisor strike him, C testified that
she did not see the supervisor strike Complainant.
Further, to the extent that Complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993) that Complainant's
claim of hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
A finding that Complainant was subjected to a hostile work environment is
precluded by our determination that Complainant failed to establish that
any of the actions taken by the agency were motivated by discriminatory
animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923
(Sept. 21, 2000).
Claims 3, 4, and 5 can also be analyzed under a reasonable accommodation
analysis. Under the Commission's regulations, an agency is required to
make reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the agency
can show that accommodation would cause an undue hardship. 29 C.F.R. �
1630.9.
In this case, the record reveals that, during the relevant time period,
Complainant was restricted from lifting or carrying more than 25
pounds and could not be on his feet for more than 20 minutes per hour.
Complainant contends that his supervisor failed to accommodate him when
she ordered him to work on the carrier barcode sorter machine, which
typically involved standing. We note that Complainant testified that he
worked on the machine while sitting on a stool. Complainant contended
that the supervisor took the stool away from him on occasion. However,
the supervisor denied ever taking the stool away from Complainant or
disallowing him from using the stool. Further, the supervisor testified
that Complainant only had to stand for a brief period when loading the
machine, which was corroborated by a Clerk. The AJ found the supervisor's
testimony credible on this matter. As such, we find that the Agency
did not fail to provide Complainant with a reasonable accommodation.
Consequently, we find that the record contains substantial evidence that
supports the AJ's determination that Complainant failed to prove that
was he was subjected to unlawful discrimination or harassment.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions
on appeal, the Commission AFFIRMS the Agency's final order for the
reasons set forth in this decision.
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
November 18, 2010
Date
1 We note that during the hearing, Complainant's counsel withdrew
his claim that he was subjected to discrimination based on color, age,
and religion. Hearing Transcript, p. 7. Therefore, we will not analyze
Complainant's complaint with respect to these bases.
2 Complainant testified that supervisors carry yardsticks so that they
can measure the mail on each carrier. HT, p. 90.
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0120080736
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080736