0120102208
09-02-2010
Jeffery A. Tarver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Jeffery A. Tarver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120102208
Agency No. 1C-431-0032-08
DECISION
BACKGROUND
On May 1, 2010, Complainant filed an appeal with this Commission from the Agency's March 30, 2010 final decision 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. For the reasons that follow, the Agency's final decision is AFFIRMED.
Complainant, a Mail Processing Clerk, alleged that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when: (1) on March 21, 2008, he was assaulted by a 204-B Supervisor and subsequently issued a Notice of 5-day Suspension for Improper Conduct, dated April 21, 2008; and (2) on April 2, 2008, Complainant received a Job Posting Memorandum which resulted in his becoming an Unassigned Regular on May 24, 2008, with a changed reporting time.
After investigation, Complainant was provided with the Report of Investigation (ROI), completed in October 2008. Complainant requested a hearing. On March 9, 2010, the EEOC Administrative Judge (AJ) dismissed the hearing request and remanded the matter to the Agency for a final decision. In the March 9, 2010 Order of Dismissal, the AJ determined that Complainant had failed to cooperate with the AJ's December 3, 2008 Acknowledgment and Order, noting Complainant's failure to respond to the Agency's discovery requests, his failure to provide an affidavit to the Investigator and his failure to show cause for his noncompliance and noncooperation with the AJ's Order to Show Cause.
In its decision finding no discrimination, the Agency concluded that Complainant had established a prima facie case of reprisal. In so concluding, the Agency noted that regarding claim (1), Complainant had engaged in prior protected activity, having acted as the representative in two discrimination complaints brought against the 204B Supervisor. The Agency concluded similarly regarding claim (2), noting that some of the alleged discriminating officials were aware of Complainant's prior EEO activity. The Agency further concluded, however, that Complainant was disciplined for improper conduct and Complainant's position was reposted and he was given an earlier start time in order for the Agency to facilitate the retrieval of mail from "TMS buffers." The Agency noted that Complainant failed to provide an affidavit to support his claim, although it was requested.
ISSUES PRESENTED
The issues presented are whether the Agency's finding of no discrimination is based upon a preponderance of the evidence and whether the Agency denied Complainant a reasonable amount of official time to work on his complaint.
ANALYSIS AND FINDINGS
Regarding claim (1), Complainant was issued a Notice of 5-Day Suspension (Notice) for improper conduct on March 21, 2008. ROI, Exhibit 4. The Notice reveals that Complainant was issued the discipline when he refused to respond to the 204B Supervisor when the 204B Supervisor asked Complainant if he could assist him, went to the 204B's desk, took a form to request time to work on EEO matters from the 204B Supervisor's desk, pushed the 204B out of the way, and walked away. Id.
In Affidavit-1, Complainant stated that he approached the Manager of Distribution Operations (MDO-1) on March 27, 2008, to ask him why he was escorted from the building on March 21, 2008, and the 204B Supervisor did not have to leave the building. Complainant's Affidavit, Mar. 1, 2009. Complainant stated that MDO-1 told him that he was put out of the building for cursing the Supervisor of Distribution Operations (SDO). Id. Complainant denied using any profanity on March 21, 2008. He also stated that MDO-2 told him that he was being sent home because the 204B Supervisor told her that Complainant had pushed him. Id. Complainant also stated that the SDO gave him the document which stated that he was being put on emergency placement for pushing the 204B Supervisor.
Employee A stated that he saw Complainant as Complainant was going toward the desk and the 204B Supervisor was saying to Complainant in a loud voice: "excuse me sir, excuse me, can I help you with something?" Employee's Affidavit, Feb. 26, 2009. Employee A stated further that as Complainant left "they bumped" because the 204B Supervisor was blocking Complainant's path. He stated that the 204B Supervisor then began calling on his radio for the SDO and Complainant was telling the 204B Supervisor to talk to his (Complainant's) supervisor.
The record contains statements from Complainant and other employee witnesses. ROI, Exhibit 5. One employee stated that he saw Complainant "brush pass" the 204B supervisor. Id. at 241. Another employee stated that she heard the 204B Supervisor asking Complainant what he was doing and Complainant replied that he was moving the 204B out of his way. Id. at 242. A third employee statement reflects that the 204B Supervisor kept the matter professional. Id. at 240.
Complainant's Supervisor (S-1) stated that on the date of the incident, he gave Complainant permission to go over to the unit where the 204B Supervisor was working. Supervisor's Affidavit, Mar. 17, 2009.
Employee B, a union representative, stated that she was in a meeting with MDO-2 and Complainant on March 21, 2008, and MDO-2 told her that Complainant was put on emergency placement because of the Agency's zero tolerance policy. Employee B's Affidavit, Mar. 24, 2009. She also stated that she and Complainant both told MDO-2 that if Complainant was being walked out, the 204B Supervisor should have been walked out also. Employee B stated that she talked to MDO-1 about the incident and he told her that he thought the whole incident was "B.S." and no big deal.
The SDO stated that an investigation was conducted into the incident and employees who witnessed the incident were interviewed. and stated that Complainant engaged in the conduct. ROI, Affidavit B, at 98-102. The SDO also stated that Complainant admitted to him that he had had physical contact with the 204B Supervisor. Id. The SDO stated further that Complainant exercised poor judgment and initiated the problem. He stated that the incident in which Complainant was involved could have escalated quickly. The SDO also stated that Complainant could not bully people, noting that if the 204B Supervisor had gone through Complainant's desk, he could only imagine what Complainant's response would have been. The SDO stated that had Complainant showed common courtesy and respect toward the 204B Supervisor, the incident would not have occurred. The SDO also stated that Complainant had been disciplined previously because of a similar incident with another 204B Supervisor. Id.
MDO-1 stated that there was no discipline issued to the 204B Supervisor because he had not engaged in an assault. ROI, Affidavit C, 109-111.
MDO-2 stated that she conducted the investigation of the incident at the behest of MDO-1. ROI, Affidavit E, 123-124. She stated also that Complainant was disciplined because of the improper conduct displayed toward the 204B Supervisor.
The Agency's Employee and Labor Relations Manual (ELM) provides that employees are expected to conduct themselves in a manner which reflects favorably upon the Agency. ROI, Exhibit 12. The ELM also provides that there would be no tolerance of harassment, intimidation, threats, or bullying by anyone at any level. The ELM also provides that employees were expected to maintain harmonious working relationships and not to do anything which would contribute to an unpleasant working environment. Id.
Regarding claim (2), the Manager of In-Plant Support (MIPS) stated that her department manages the ongoing review of service and quality performance. ROI, Affidavit F, 128-131. The MIPS also stated that Complainant's position and two other positions in the section, which consisted of only three positions, were all reposted for earlier start times. She also stated that MDO-4 requested that the work section be moved to an earlier start time to facilitate the retrieval of mail from TMS buffers.
MDO-4 stated that she made the decision to repost the position and change the bid. ROI, Affidavit D, 118-119. She stated further that because Tour 1 was having a difficult time getting all the available mail off the buffer out due to "flow control" on the TMS, she decided to move the bids to an earlier start time so that mail would be available for another tour of duty when those employees arrived.
The SDO stated that Complainant's working hours were from 9:00 p.m. to 5:30 a.m. ROI, Affidavit B. The SDO stated further that because most work occurred earlier in the day and was completed by 1:00 a.m., Complainant's starting time was moved to 2.5 hours earlier.
In a Memorandum to Complainant regarding claim (2), Complainant was notified that due to the needs of the service, his bid was abolished in accordance with the union agreement. Notice of Abolishment of Bid Assignment and Unencumbered Assignment (Memorandum), May 14, 2008. Complainant was notified that he had retreat rights and failure to retreat for the first available vacancy would terminate his retreat rights. Complainant was also notified in the Memorandum that he would become an Unassigned Regular on May 24, 2008, with a starting time of 2400 hours with Thursdays and Fridays off. Complainant was further notified that as an Unassigned Regular he was encouraged to bid on posted duty assignments for which he was eligible to bid and that if he failed to or unsuccessful bid, he could be assigned to a residual assignment. Id.
In Affidavit-2, Complainant stated that on April 15, 2008, he asked MDO-3 whether he knew that Complainant's bid was being put on MDO-4's tour and MDO-3 said he did not know that information. Complainant's Affidavit, Mar. 1, 2009.
In a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) complainant engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). A complainant may also establish a prima facie case by presenting evidence which, if it was not explained, would reasonably give rise to an inference of reprisal. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (December 6, 1996).
The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
To ultimately prevail in a discrimination complaint, a 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); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). A complainant bears the burden of establishing that the agency's articulated reason is a mere pretext for discrimination. A complainant can do this either directly, by showing that a discriminatory reason more likely motivated the agency, or indirectly, by showing that the agency's proffered explanation is unworthy of credence. Burdine, supra.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides, in relevant part, that "if the complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to the agency and the EEOC requests for information." Section 1614.605(b) also provides that the agency is not obligated to change work schedules or incur overtime wages to allow the complainant and his representative to confer. The Commission has held that a discriminatory motive is not required to find that a violation of 29 C.F.R. �1614.605 has occurred. The Commission has stated that an allegation pertaining to the denial of official time states a separately processable claim alleging a violation of the Commission's regulations, and does not require a determination of whether the action was motivated by discrimination. Bryant v. Department of Treasury, EEOC Appeal No. 0120065274 (February 25, 2009); Edwards v. United States Postal Service, EEOC Request No. 05950708 (October 31, 1996). The Commission has the authority to remedy a violation of 29 C.F.R. � 1614.605 without a finding of discrimination. Edwards, Id.
On appeal, Complainant contends that the statements of the Agency's witnesses concerning the incident that occurred on March 21, 2008, were conflicting and noted alleged conflicts. He provided interview notes taken by the Union Steward for interviews with management officials concerning the March 21, 2008 incident and, also, affidavits from employees.1 Complainant contends also that the Agency failed to grant him a reasonable amount of official time to work on his complaint.2
In the present case, the Commission notes that because this matter is an appeal from a decision issued without a hearing pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to a de novo review by the Commission. 29 C.F.R. � 1614.405(a). A de novo review requires the Commission to examine the record without regard to the factual and legal determinations of the previous decision maker and to review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and to issue a decision based on the Commission's own assessment of the record and its interpretation of the law.
The Commission will first address the alleged denial of official time which Complainant raised in his appeal. The record contains a letter from Complainant's then representative to the AJ informing the AJ that he could not respond to discovery because the Agency had failed to provide a reasonable amount of official time to comply with discovery and to develop the case. Letter to AJ, Mar. 17, 2009. The letter reflects that the AJ was asked to consider the Agency's "cap" on the amount of official time before granting the Agency's motion to dismiss. In his appeal, Complainant asserts that his Supervisor (S-2) denied him official time to address his complaint and, in violation of the EEOC's Management Directive, she failed to provide him with a written statement regarding the denial.
The record does not indicate the number of hours that Complainant was requesting. He makes only the generalized assertion that he was denied a reasonable amount of official time. Complainant has not provided the number of hours that he believed was reasonable. Also, he has not shown what evidence he was unable to present because his request was allegedly denied. The Commission also notes that the SDO's affidavit indicates that Complainant was receiving 20 hours a week to handle discrimination complaints for anyone who asked. ROI, Affidavit B, at 98. Complainant has not disputed this statement. Complainant has not demonstrated, beyond his mere assertion, that he was denied official time. Accordingly, we cannot find that he was denied a reasonable amount of official time. The Commission considers it reasonable for agencies to expect their employees to spend most of their time performing the work for which they are employed. Equal Employment Opportunity Commission Management Directive 110 (MD-110), 6-16.
Regarding claims (1) and (2), the Commission finds that Complainant failed to show by a preponderance of the evidence that the Agency engaged in prohibited retaliation against him by taking the actions that it did. Because the Agency has articulated legitimate, nondiscriminatory reasons for its actions, a prima facie analysis is not necessary. We find that Complainant was issued discipline for improper conduct toward the 204B Supervisor. The mere fact that Complainant has engaged in prior EEO activity does not immunize him from appropriate disciplinary action. Here, the record supports a finding that Complainant engaged in improper conduct. The Commission notes that participation in the EEO process does not shield employees from uniformly applied standards of conduct and performance; nor is Title VII a license for employees to engage in improper conduct. Regarding claim (2), we find that the record establishes that Complainant's job was reposted and his working hours changed to facilitate mail retrieval and, also, that Complainant was not the only employee whose job was reposted.
Complainant has failed to show that the Agency's legitimate, nondiscriminatory reasons for its actions were pretextual and that the Agency's real reason was motivated by prohibited discrimination. Although Complainant asserts that he was assaulted by the 204B Supervisor, Complainant did not address what occurred during the incident with the 204B Supervisor in the affidavits that he submitted; nor did he address the reposting issue. Even if we accept Complainant's contention that the Agency officials lied, Complainant must link the lie or its creation to prohibited discrimination. Further, it appears that while there may have been tension in the workplace, the actions were not motivated by discriminatory animus. It is not sufficient "to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. at 519.
At all times the ultimate burden of persuasion remains with complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Complainant has failed to do so.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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
September 2, 2010
__________________
Date
1 The statements and affidavits submitted by Complainant were also submitted on appeal by the Agency with the ROI.
2 The Agency submitted a brief on appeal. Agency's Brief, June 16, 2010. The brief, however, addressed why the grant of a motion for summary judgment would have been proper.
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0120102208
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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