0120080739
10-15-2010
Harvey L. Crowe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Harvey L. Crowe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120080739
Hearing No. 460-2007-00062X
Agency No. 4G-770-0260-06
DECISION
On November 26, 2007, Complainant filed an appeal from the Agency's October 31, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing.
2. Whether the AJ properly found that Complainant was not subjected to unlawful discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a letter carrier at the Agency's facility in Houston, Texas. Complainant has been employed with the Agency since 1998. On or about May 13, 2006, Complainant began delivering a new route, pursuant to his bid, with a reporting schedule of 7:00 a.m. until 3:30 p.m. On September 6, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against and harassed him on the bases of race (White),1 age (born in 1953), and in reprisal for prior protected EEO activity when:
1. From May 15, 2006 to June 8, 2006, he was repeatedly denied time to learn a new assignment;
2. On May 25, 2006, the Agency issued him a pre-disciplinary interview that resulted in a Letter of Warning on June 15, 2006;
3. On July 20, 2006, he was issued a Letter of Warning for unsatisfactory work performance/failure to follow instructions; and,
4. On August 5, 2006, his duty hours were changed to 1:00 p.m. through 5:00 p.m.2
The record reveals that Complainant entered into mediation with management on August 3, 2006; however, no resolution was reached during mediation. In an investigative affidavit, Complainant stated that when he started working at the James Griffith Station in Houston, his assigned route contained approximately 20 feet of curtailed mail. He stated that each day he submitted a Form 3996 with an estimate of the time he would need to service the route. Complainant stated that although he had just started the route and many carriers were aware of the extended length of the route, his requests for more time and assistance were repeatedly denied.
Complainant further stated that the Agency issued him a Pre-Disciplinary interview on May 25, 2006, which subsequently led to the issuance of a Letter of Warning because of his performance on his new route. He stated that he had never carried that route before and was unfamiliar with it. Complainant further stated that while delivering the route, he realized he was running out of time, so he contacted the station for instruction/direction. Complainant stated he was told to work up to the point that would cause him to go into penalty and then return to the station with the leftover mail. He stated that he did as he was told, but was still disciplined.
Complainant also stated that the Letter of Warning was issued 48 days after the incident. He stated that he felt that the Letter was an attempt by management to deny him due process, and discipline was "stacked" against him.
Complainant stated that on August 5, 2006, management issued him a routing slip that informed him that his duty hours were changed from 7:00 a.m. until 3:30 p.m. to 1:00 p.m. until 5:00 p.m. He stated he was not given a reason or explanation when his hours were changed.
Complainant further stated that a 40-year old Asian employee (C1) and an African-American employee of unknown age (C2) were treated more favorably than he was treated because they were granted time to learn a new assignment. He further stated that C1 was treated more favorably because she was not given a Pre-Disciplinary Interview. Complainant stated that management was aware of his prior EEO activity because management officials were present when he requested EEO representation.
The Supervisor of Customer Services (unknown race, born in 1956) stated that during the relevant time period, he was unaware that Complainant had engaged in EEO activity. He stated that from May 15, 2006 to June 6, 2006, Complainant submitted PS Forms 3996 on which he requested assistance with his new route, including requests for extra time to service his route. He further stated that Complainant generally requested much more assistance than could be justified considering his degree of experience on his route, the daily mail volume, and the availability of assistance. He stated that on many occasions, Complainant's auxiliary assistance requests were granted, but on other occasions, they were denied. He stated that management considered each request received based upon operational needs and the imperative to control labor costs by minimizing the use of overtime.
The Acting Station Supervisor (Hispanic, born in 1959) stated that she became aware of Complainant's prior EEO activity when he requested a reasonable accommodation for his medical condition. She stated that Complainant's work hours were changed to 1.00 p.m. until 5:00 P.M. on August 5, 2006, in an effort to accommodate his light duty status. She stated that she was involved in the decision to change Complainant's hours, and he was advised that the change was made to accommodate his request.
The Manager of Customer Services (Black, born in 1965) stated that she was not aware of Complainant's prior EEO activity. She stated that Complainant was subjected to an Investigative Interview on June 3, 2006 and June 6, 2006, because although he was given auxiliary assistance, he continued to bring mail back to the station. She stated that Complainant was issued a Letter of Warning on July 20, 2006, for Unsatisfactory Work Performance and Failure to Follow Instructions. She stated that Complainant's supervisor issued the Letter of Warning, and she was the concurring official.
She stated that Complainant submitted a request for light duty work that indicated that he could only work four hours and only work in the morning. She stated that management accommodated Complainant by providing him with four hours of work in the afternoon casing mail.
The record contains a copy of a Letter of Warning dated July 18, 2006. Exhibit 7. The letter stated that on June 2, 2006, Complainant was assigned carrier duties on Route 8004, and Complainant Submitted a Form 3996 on which he requested two hours of overtime auxiliary assistance. The letter further stated that Complainant's request was approved, but Complainant nonetheless returned to the station at approximately 5:04 p.m. with two hours and forty five minutes of undelivered mail, although his tour of duty was scheduled to end at 5:30 p.m. The letter stated that Complainant was instructed to complete delivery of all mail by 5:30 p.m. and to notify management if there was a reason he was unable to complete delivery of his assignment within the allotted time period, but he failed to do so, which warranted the issuance of the Letter of Warning.
The record also contains a copy of a form from Complainant's physician dated July 6, 2006. Exhibit 8. On the form, Complainant's physician stated that Complainant could return to work on July 10, 2006, and was restricted to working indoors for four hours per day. On a form dated August 5, 2006, the Agency offered Complainant a light duty assignment with a starting time of 1:00 p.m. and ending time of 5:00 p.m., with Sundays and Tuesdays off. Exhibit 9. On a form dated August 24, 2006, Complainant accepted a modified assignment that included two hours of answering the telephone, two hours of working on toll-roll business reply, and filing as needed. Exhibit 12.
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 AJ. Complainant timely requested a hearing. On May 24, 2007, the Agency filed a motion for a decision without a hearing. Complainant did not respond to the motion. On October 26, 2007, the AJ issued a decision without a hearing in which she found that Complainant was not subjected to unlawful discrimination. The Agency subsequently issued a final order adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency failed to articulate sufficient reasoning for its actions. He stated that the affidavit responses of management officials were "brief, unprecise [sic], incoherent, and vague." Complainant further argued that he established a prima facie case of reprisal by proving that management knew about his previous EEO activity, and showing that his work schedule was changed only two days after mediation occurred. The Agency requested that we affirm its final order.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). We find that the AJ properly issued a decision without a hearing because Complainant failed to show that a genuine issue of material fact or credibility existed.
Disparate Treatment
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). For instance, to establish a prima facie case of disparate treatment on the basis of sex, Complainant must show that: (1) he is a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security Administration, EEOC Appeal No. 0120093260 (October 22, 2009).
To establish a prima facie case of reprisal, Complainant generally must show that: (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
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. 711.715-716 (1983).
In this case, Complainant is a Caucasian employee who was born in 1956. Complainant made the generalized, non-specific assertion that a 40-year old Asian employee (C1) and an African-American employee of unknown age (C2) were treated more favorably than he was treated because they were granted requested time to learn a new assignment. He further generally stated that C1 was treated more favorably because she was not given a Pre-Disciplinary Interview. However, Complainant has not provided any specific details about the comparators that would establish that they were similarly situated, such as the dates and reasons for their requests for assistance. Moreover, the record further reveals that Complainant is not similarly situated to C1 because C1 is a T-6 Carrier Technician, whereas Complainant is not. Moreover, the record reveals that C2 was assigned to the Oak Forest Station, whereas Complainant was assigned to the James Griffith Station.
With regard to claim 2, Complainant has not shown that C1 engaged in the type of conduct that was cited as the basis for his Pre-Disciplinary Interview. Regarding claims 3 and 4, Complainant could not identify any comparative employees who were treated more favorably than he was treated with respect to these matters. Complainant has not provided any evidence from which an inference of age or race discrimination could be raised. Thus, we find that Complainant failed to establish a prima facie case of age or race discrimination.
Complainant stated that he engaged in EEO activity when he asked management for an EEO representative on June 12, 2006, and during mediation with management on August 3, 2006. The record further reflects that Complainant engaged in EEO activity when he submitted a request for a reasonable accommodation to management on or about July 6, 2006. There is no evidence that Complainant engaged in any EEO activity prior to June 12, 2006. Thus, Complainant did not establish a prima facie case of reprisal for claims 1 and 2 because these matters predated his EEO activity. However, because of the close proximity in time between the events in claims 3 and 4, there is a strong nexus between Complainant's prior EEO activity and the alleged actions in claims 3 and 4. Consequently, we find that Complainant established a prima facie case of reprisal for claims 3 and 4.
Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. With respect to claim 3, the Agency stated that Complainant was issued the Letter of Warning because on June 2, 2006, he failed to deliver all the mail assigned to his route despite utilizing two hours of overtime. With respect to claim 4, management stated that Complainant submitted a request for light duty work that indicated that he could only work four hours and only work in the morning, and management accommodated Complainant by providing him with four hours of work in the afternoon casing mail.
Complainant argued on appeal that the affidavit responses of management officials were "brief, incoherent, and vague." However, we find that the officials' responses and documentary evidence sufficiently provide legitimate, non-discriminatory reasons for its actions. We find that Complainant failed to provide any evidence from which it could be concluded that the Agency's non-discriminatory explanations were pretext for unlawful discrimination based on reprisal. Consequently, we find that Complainant failed to establish a prima facie case of age or race discrimination.
Hostile Work Environment
Finally, 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 (March 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. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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
_____10/15/10_____________
Date
1 We note that the AJ's decision inexplicably stated that Complainant alleged discrimination on the bases of age, sex, and reprisal. However, in his formal complaint and affidavit statement, Complainant identified age, race, and reprisal as the bases.
2 We note that in a letter dated September 22, 2006, the Agency dismissed 11 additional claims on the grounds that they failed to state a claim. However, because Complainant failed to make specific arguments challenging the dismissals on appeal, we decline to review them herein.
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0120080739
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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