Jody K. George, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 9, 2003
01A13868_r (E.E.O.C. Dec. 9, 2003)

01A13868_r

12-09-2003

Jody K. George, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


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