01A13868_r
12-09-2003
Jody K. George v. United States Postal Service
01A13868
December 9, 2003
.
Jody K. George,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13868
Agency Nos. 4-F-956-0069-97
4-F-956-0177-97
4-F-956-0052-98
Hearing Nos. 370-98-2094X
370-98-2471X
370-99-2101X
DECISION
Complainant filed a timely appeal from an agency final order concerning
the captioned complaints, which are brought pursuant to 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 record reveals that complainant, a Mail Carrier at the agency's
Merced, California postal facility, filed three formal EEO complaints: on
April 18, 1997 (4-F-956-0069-97); on October 27, 1997 (4-F-956-0177-97):
and on May 4, 1998 ( 4-F-956-0052-98). Complainant claimed that the
agency discriminated against him on the bases of race (Caucasian),
national origin (Polish), sex (male), religion (Christian), color
(white), age (D.O.B. 9/23/55), and in reprisal for prior EEO activity,
as evidenced by the following incidents:
(1) On October 30, 1996, the agency issued complainant a 7-day
suspension for failing to operate his motor vehicle in a safe manner
(Agency No. 4-F-956-0069-97/ Hearing No. 370-98-2094X);
On June 9, 1997, complainant's supervisor denied him use of official
EEO time, and as a retaliatory measure, followed him on his route,
and then talked to him about his purported improper lifting technique
and excessive street time usage(Agency No. 4-F-956-0177-97/ Hearing
No. 370-98-2471X);
On October 29, 1997, the agency issued complainant a Letter of Warning
for using unauthorized overtime (Agency No. 4-F-956-0052-98/ Hearing
No. 370-99-2101X);
On November 25, 1997, the agency issued complainant a 7-day suspension
for failure to follow instructions (lunch box on mail delivery tray)
( Agency No. 4-F-956-0052-98/ Hearing No. 370-99-2101X); and
On December 9, 1997, the agency issued complainant a 14-day suspension
for failure to following instructions (failure to have mail ready
for delivery and back tracking on route) (Agency No. 4-F-956-0052-98/
Hearing No. 370-99-2101X).
At the conclusion of the investigation for each complaint, complainant
received a copy of the investigative report, and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination.
Claim 1
The AJ found that complainant received a seven-day suspension after
he was involved in a minor collision with another vehicle, based on
the agency's determination that he was at fault for the accident. The
AJ found that while complainant claimed that other employees who were
involved in vehicle accidents did not receive discipline comparable
to a seven-day suspension, he failed to present sufficient evidence to
confirm this contention. In particular, the AJ found that testimony
on this point was unreliable because it was based on rumors repeated by
the witnesses. Additionally, the AJ found that complainant failed to
show that similarly situated individuals received less severe discipline
after a vehicle accident because, unlike the individuals complainant
identified, complainant had received discipline for a vehicle accident
less than two months prior to the accident at issue. Accordingly,
the AJ concluded that complainant failed to establish a prima facie
case of retaliation or discrimination on any of the bases alleged in
his complaint. Furthermore, the AJ found that even assuming arguendo
that complainant established a prima facie case, the agency articulated
a legitimate non-discriminatory reason for its action, i.e., that
complainant was at fault for the accident, and it was his second vehicle
accident warranting discipline in a two-month period. Finally, the AJ
found that complainant ultimately presented no evidence to show that
the agency's proffered reasons were a mere pretext for discrimination.
Claim 2
The AJ determined that the record revealed that complainant admitted
that his supervisor ultimately granted his request for administrative
time to work on an EEO affidavit, even though it was not on the day
requested, or for the amount of time requested. Also, the AJ found that
complainant did not dispute that while following him on his route, his
supervisor observed him using an improper lifting technique, and that
he went over his delivery time on June 9, 1997. The AJ found that while
complainant's supervisor questioned him about both matters, complainant
was not issued discipline, nor subjected to any action adversely affecting
the terms, conditions or privileges of his employment. Therefore,
the AJ concluded that complainant failed to show that he was subjected
to an adverse action, and so failed to establish a prima facie case of
discrimination or retaliation as to the incidents identified in claim 2.
Claims 3, 4, and 5
The AJ determined that complainant established a prima facie case of
discrimination and retaliation as to these claims. Specifically, the AJ
found that complainant admitted to committing the infractions specified in
the disciplinary actions identified in each of these claims, but alleged
that similarly situated co-workers committing similar infractions were
not issued such severe discipline.
Next, the AJ determined that the agency articulated a legitimate,
non-discriminatory reason for its actions; specifically, that complainant
consistently failed to meet minimum time standards when delivering mail,
and the specific work method violations identified in the disciplinary
actions contributed to his failure to meet these standards. The AJ
made reference to hearing testimony in which complainant's supervisor
testified that complainant failed to meet minimum time standards
approximately 60 to 70 percent of the time; consistently requested
overtime hours to complete his route, as well as other time �on top� of
approved overtime hours; and that complainant was the most frequent user
of unauthorized overtime hours. The AJ also noted that complainant's
supervisor testified that complainant failed to meet time standards
because he engaged in time-wasting practices such as checking mail
addresses multiple times, resulting in his not having the mail ready to
deliver upon reaching the customer's mailbox. Additionally, the AJ noted
the testimony of another agency official who attested that complainant's
work performance ranked at the bottom 23 percent, and that he engaged
in time-wasting practices, such as placing his overly large lunch pail
on the delivery tray, resulting in the need to re-arrange piles of mail,
and taking extra steps (back tracking), both which delayed his delivery
of the mail. The AJ determined that while the official acknowledged that
other workers also placed personal items on the delivery tray without
disciplinary consequence, it was because they were smaller items,
and did not interfere with mail delivery methods or times.
The AJ then determined that complainant presented no evidence to
challenge any of these reasons, nor any comparative evidence to
prove that similarly situated individuals (presumably individuals who
consistently committed these infractions and had poor work performance
comparable to complainant's as a result) outside of his protected classes
were treated more favorably , or held to a less stringent standard as
compared to complainant. The AJ then found that complainant presented
no reliable evidence to show that the agency's articulated reasons were
a pretext for discrimination or retaliation.
Accordingly, the AJ concluded that complainant failed to prove, by a
preponderance of the evidence, that the agency discriminated against
him on the bases or race, color, sex, religion, national origin, age,
or in retaliation for his prior EEO activity.
The agency's final order implemented the AJ's decision.
On appeal, in pertinent part, complainant contends that the AJ erred when
she found the testimony of his witnesses to be unreliable, but found
that the agency's witnesses provided reliable and credible testimony.
Complainant also contends that the AJ gave him misleading information,
not further described, and did not allow him adequate time to prepare
his case. Additionally, regarding claim 2, complainant argues that the AJ
erred in finding that he was not adversely affected by his supervisor's
conduct, arguing that this conduct amounted to harassment. In general,
complainant argues that he should prevail because the agency did not
articulate a legitimate non-discriminatory reason for its actions,
and because the Commission takes a broad view of what agency actions
can constitute retaliation.
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.
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record. We find that the AJ's decision
properly referenced record evidence, including hearing testimony,
properly summarized the relevant facts, and correctly made reference
to and applied the appropriate regulations, policies, and laws.
In particular, as to claims 1, 3, 4, and 5, we find that the AJ made
sound credibility determinations based on hearing testimony, and other
evidence, and that she correctly framed the agency's articulated reasons,
as set forth above. Additionally, we find that the AJ properly concluded
that complainant ultimately failed to show, by a preponderance of the
evidence, that these reasons were untrue or a pretext for discrimination.
See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Moreover, as to claim 2, we find that the AJ properly determined
that complainant's request for administrative time to work on an EEO
affidavit was ultimately granted, and based on our review of the record,
we find that complainant's supervisor acted reasonably in this regard.
Specifically, the record shows that on the day complainant requested
official time, a named co-worker he wanted to assist him with the
affidavit was not present, so that complainant was instead permitted to
use official time when this co-worker was available. See EEO Management
Directive 110, Chapter 5-27(November 9, 1999). Accordingly, we find no
per se violation of the regulations occurred regarding this incident.
Furthermore, although complainant contends on appeal that his supervisor's
conduct amounted to harassment, based on our review of the record, we
find that the route observation conducted by complainant's supervisor,
and subsequent verbal instructions regarding delivery method, simply do
not rise to the level of harassment due to a hostile work environment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Therefore, we find that the AJ properly determined that
complainant failed to establish a prima facie case of race, color,
religion, national origin, sex, or retaliation regarding claim 2.
Additionally, based on our own review, we find no per se violation of
29 C.F.R. � 1614.605(b).
Finally, we note that an AJ has broad discretion in the conduct of a
hearing, including matters such as discovery orders, scheduling, and
witness selection. See 29 C.F.R. � 1614.109(c). Based on our review
of the record, notwithstanding complainant's contentions on appeal to
the contrary, we find no evidence that the AJ abused her discretion in
conducting the hearing in this case.
Therefore, after a careful review of the record, we discern no basis
to disturb the AJ's decision, and we AFFIRM the agency's final order
finding no discrimination.
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
December 9, 2003
__________________
Date