0120130274
03-12-2013
Joe M. Stevens, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Joe M. Stevens,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120130274
Hearing No. 530-2008-00020X
Agency No. 1A-066-0007-07
DECISION
Complainant filed an appeal from the Agency's August 29, 2012 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Northern New Jersey Metro Processing and Distribution Center in Teterboro, New Jersey.
On May 23, 2007, Complainant filed (and later amended) an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when:
1. on January 31, 2007, Complainant's supervisor placed him on emergency suspension;
2. on February 15, 2007, the supervisor caused Complainant to fall;
3. on or about February 15, 2007, Complainant was issued a Pre-Disciplinary Interview regarding a parking incident; and
4. on May 2, 2007, Complainant's supervisor charged Complainant Absence without Leave (AWOL) for failing to provide a doctor's note for his early departure on May 1, 2007, and laughed at him.
The Agency conducted an investigation of the complaint. The pertinent record reflects that Complainant engaged in prior EEO activity in 2004 and 2005. He named his current supervisor and the Manager of Distribution Operations. Both were aware of the EEO activity. In addition, on December 27, 2007, an Administrative Judge had issued a decision in favor of the Agency and the supervisors were aware of the AJ decision.
Claim One - Emergency Placement
The supervisor placed Complainant on Emergency Suspension (Emergency Placement in Off-Duty Status) effective January 31, 2007, at 9:40 AM. The supervisor stated that he placed Complainant on off-duty status because Complainant was causing a disturbance on the workroom floor and refusing to return to his duties, after the supervisor directed him to get back to work.
As further background, on January 31, 2007, Complainant reported to his supervisor that another Mail Handler from another unit had assaulted him on the workroom floor. Complainant said that he feared for his safety, although the other employee worked in a different area. The supervisor interviewed Complainant and took statements from both men. In addition, the supervisor called the Postal Inspectors and the Northern New Jersey District Threat Assessment Team for advice. Based on the advice given to him, the supervisor directed Complainant and the co-worker to stay away from one another.
The co-worker returned to his work area. Complainant did not go back to his work area, as directed. Instead, Complainant called the police. The police advised Complainant on what to do, if he felt threatened. After Complainant talked with the police, the supervisor again directed Complainant to return to work. Complainant refused and told the supervisor that he did not feel safe with the co-worker in the building.
Complainant attested that Complainant requested that the supervisor take him to the doctor because Complainant believed that his blood pressure was high. The supervisor called an ambulance. The medical personnel came and assessed Complainant's condition. After assessing Complainant, the medical personnel completed an Ambulance Patient Report, stating Complainant may have had a panic attack. The report also indicated that Complainant refused to be transported to the hospital, refused medication, and the report noted that Complainant signed a release. Complainant then told his supervisor that he was going to see his own doctor, and Complainant left the building.
The supervisor attested that he did not place the other coworker on emergency placement because the other worker returned to his work area when he was directed to do so, and Complainant had not.
Claim Two - Altercation Regarding Modified Job Assignment and Fall
On May 1, 2007, Complainant and his supervisor met to discuss an unrelated offer of a modified job assignment. Complainant requested the presence of a Union Steward at the meeting. The supervisor paged the Union Steward to ask the Union Steward to sit in on the meeting. Once the steward arrived, the supervisor presented Complainant with an offer of a modified job assignment. The supervisor asked Complainant to indicate whether he accepted or refused the job offer, by signing the form. Complainant started writing on the form in an area that was not the signature line. The supervisor told Complainant to stop writing and reached for the paper. The supervisor then covered the paper with his hands, pulling the paper away, while Complainant was holding on to the paper. The Union Steward stated that Complainant was pushed off balance by this and fell to the ground. Complainant attested that the supervisor touched him, which caused him to fall to the floor, injuring his leg. Although Complainant alleged that the Agency forced him to sign for a modified job offer, the record shows that Complainant declined the job offer.
Complainant attested that he was "stressed out" after the fall and he left work early.
Also, the record shows that Complainant filed a complaint against his supervisor with the Municipal Court of Teterboro, New Jersey in which Complainant charged his supervisor with assault and harassment. The case was dismissed prior to the scheduled trial date.
Claim Three - Pre-Disciplinary Interview
On February 15, 2007, Complainant was issued a Pre-Disciplinary Interview regarding parking in the wrong space. The Agency dismissed this issue for failure to state a claim and did not investigate it.
Claim Four - AWOL and Mocking
When Complainant arrived at work on May 2, 2007, his supervisor asked Complainant for a doctor's note for his absence on the day before. The supervisor marked Complainant AWOL when he did not provide a doctor's note.
Complainant also averred that he believed that he was being mocked by management later that day. He heard the supervisor and the Manager of Distribution Operations laughing at another employee who was lying on the workroom floor, asking someone to call 911. Complainant stated that his supervisor and the Manager looked at him and started laughing. The supervisor and the other management official denied that laughing at Complainant.
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.
Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on August 21, 2012.
As an initial matter, the AJ affirmed the dismissal of claim three - the allegation regarding the discussion regarding the parking incident - because he found that Complainant did not address the matter of the parking incident in his prehearing statement as required.
In his ruling on the merits, the AJ found that Complainant could not establish a prima facie case because he did not identify anyone else who was treated more favorably under similar circumstances. However, assuming Complainant had put forth an prima facie case of reprisal, the AJ determined that the responsible management officials articulate legitimate, nondiscriminatory reasons for the disputed actions.
Next, the AJ found that Complainant did not offer any evidence to refute the Agency's stated reason for the Emergency Placement - that Complainant created a disruption after he refused to go back to his work area and perform his duties.
With regard to claim two, the AJ reasoned that Complainant fell because he and his supervisor were engaged in an altercation and struggled over a sheet of paper. The struggle resulted in Complainant falling. The AJ found that the fall was not intentional or discriminatory. He stated that Complainant did not show that he was "somehow treated differently on the basis of his prior EEO activity from any other employee who struggled over a sheet of paper with his manager."
Regarding the AWOL, the AJ found that Complainant had not produced any evidence to show that he was treated differently on the basis of his prior EEO activity when his manager asked him for a note to justify his early departure on May 1, 2007.
The AJ found that the supervisor and the Manager of Distribution Operations were reacting to another employee who was mocking Complainant. The AJ reasoned that while Complainant was disturbed by the conduct of his managers and the conduct was boorish, it was not retaliatory. The AJ also noted that this issue had not been accepted for investigation and was not before him for adjudication. The AJ concluded that Title VII is not a civility code and "examining the evidence in the light most favorable to Complainant demonstrates that he cannot establish, by a preponderance of the evidence, that the Agency retaliated against him" as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 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").
Title VII Section 717 applies to this employment retaliation claim against the Federal government. Section 717 states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination," and this includes retaliation. Similarly, the Commission's regulations at 29 C.F.R. � 1614.101(b) provide "No person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act . . . or the Rehabilitation Act."
As an initial matter, we note that Complainant does not address the dismissal of the claim regarding the pre-disciplinary discussion regarding parking. Instead, on appeal, Complainant states that he is appealing in an effort "to inject" new claims of discrimination.1 He did not identify any material facts in dispute regarding the claims that are before us.
We now turn to the merits of those claims. With regard to claim one, we find the record supports the AJ's summary judgment in favor of the Agency. The undisputed evidence of record is that the supervisor placed Complainant on emergency placement after Complainant voiced objections on the work floor to the supervisor's instructions and disputed his supervisor's orders to return to the work area. The undisputed evidence of record shows that the other person involved in the altercation was given the same order, and he complied with the direction to return to his work station. Complainant offered no evidence to refute the supervisor's stated reason for his action (that Complainant caused a disturbance on the work floor). The AJ's determination was, therefore, appropriate.
With regard to claim two, we find that there is no evidence that the supervisor intentionally caused Complainant to fall, as an act of retaliation. There is no dispute that Complainant and his supervisor were both tugging on the same piece of paper, when Complainant lost his balance and fell.
With regard to claim three, as noted above, Complainant did not include the issue in his pre-hearing statement. Therefore, we view the issue as waived.
With regard to claim four, the record shows the supervisor charged Complainant AWOL after Complainant was away from his duty station without approved leave and without the documentation which his supervisor required to support the leave request. There is no evidence to show this reason was a pretext for retaliation.
Further, we discern no basis to overturn the AJ's finding that the incident regarding the laughter was outside the scope of the accepted issues and the mandate of Title VII. The AJ noted that Title VII is not a civility code. Although management's conduct appears unprofessional and we are sympathetic to Complainant's situation, we find there is insufficient evidence to raise a dispute of material fact as to whether the actions were because of retaliation for his prior EEO activity.
CONCLUSION
Accordingly, the Agency's final order adopting the AJ's finding of 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 tends 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
March 12, 2013
__________________
Date
1 We understand that Complainant wishes to raise additional claims of retaliation for incidents that occurred after the filing of this complaint. Those incidents are not within the scope of our review. Complainant should contact the Agency for EEO counseling on these additional claims.
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0120130274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130274