0120120054
06-14-2013
John S. Mariano, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
John S. Mariano,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120054
Agency No. 1H366000611
DECISION
Complainant filed an appeal from the Agency's August 22, 2011, 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., 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 decision.
ISSUES PRESENTED
Whether Complainant established that the Agency subjected him to harassment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Maintenance Operations at the Mobile Processing and Distribution Center, in Mobile, Alabama. On March 8, 2011, Complainant filed an EEO complaint alleging that the Agency, since December 8, 2010 and continuing, subjected him to harassment on the bases of race (Asian), national origin (Filipino), age (46), and reprisal for prior protected EEO activity regarding duty assignments, leave usage, and performance. Specifically, Complainant alleged that:
1. On October 12, 2010, he was charged unscheduled emergency annual leave;
2. During December, 2012, there were issues involving his request for annual leave;
3. On January 19, 2011, he was assigned to locker control;
4. On February 16, 2011, an email was sent out involving duty assignments;
5. On February 19-21,2011, he was assigned as on-call supervisor;
6. He was the only maintenance supervisor to assign technicians specific equipment to monitor; and
7. On December 17, 2010, a Safety and Health Inspection was conducted on his tour and his tour was audited by the Electrical Work Plan (EWP) program on February 16, 2011.
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency, in its FAD, found that Complainant failed to establish a prima facie case of discrimination because he failed to identify a similarly situated individual outside of his protected classes who was treated differently than he was treated. Further, the Agency found that Complainant failed to show that the incidents alleged were based on his protected classes. With regard to Complainant's harassment claim, the Agency also found that he failed to establish that the incidents alleged occurred because of his protected bases.
With regard to incident 1, Complainant's allegation that he was discriminated against because he had to take emergency annual leave on October 12, 2010, when he had car problems on the way to work, Complainant asserts that another Supervisor (S1) did not report to work on January 5, 2011, did not take any type of leave and was instead paid work hours for the day. Complainant alleged S1 was paid for a day of work without having to work one minute and Maintenance Manager (MM).did nothing to correct it. The Agency noted, however, that MM testified he was unaware that S1 was not at work on January 5, 2011 because MM was on annual leave at the time and that he had no evidence that S1 did not work that day. The Agency found that because MM did not condone S1's absence, Complainant failed to show that he was treated in a different manner.
With regard to incident 2, the Agency found that Complainant failed to establish that he was denied any leave. According to MM's testimony, Complainant was granted personal leave rather than annual leave and the record established that he was not treated in a disparate manner pertaining to his request.
With regard to incident 3, the Agency found that MM denied Complainant's assertions that he treated him as his clerk and personal secretary. MM testified that the Plant Manager wanted the lockers to be handled by the maintenance department and explained that he assigned that task to Complainant because most of the people were on his shift. Although Complainant argued that two other supervisors were treated more favorably with regard to the assignment of the locker control task and other tasks, MM testified that all supervisors are given the responsibility to pull reports for him and to pass the information to the technicians.
With regard to incident 4, MM confirmed that he sent an email to Complainant dated February 16, 2011, regarding Complainant's duty assignments. MM explained he sent the email to all of the supervisors to ascertain each supervisor's job duties and responsibilities over and above their normal supervisor duties. MM asserted that Complainant complained that he did everything while the other supervisors did nothing. The Agency found that the record established that two other Supervisors, S1 and S2, also responded to MM's email by listing their duties.
In regards to incident 5, MM testified that on the weekend of February 5-6, 2011, Complainant was assigned to be on call; however, MM forgot to give the phone to Complainant before he left the facility and Complainant had no way to access the telephone that was locked in his office. Therefore, MM asserted that he worked as the on-call supervisor the weekend of February 5-6, 2011, in Complainant's place. MM denied that he required Complainant to work as on-call supervisor on February 19-21, 2011. MM explained on the Monday or Tuesday preceding the weekend, he asked Complainant to cover the weekend, which was MM's scheduled weekend, since he had covered Complainant's weekend on February 5-6, 2011. MM testified that Complainant agreed to be on call and did not indicate he had a problem covering the weekend.
Concerning incident 6, MM explained that Complainant is a supervisor and that part of his responsibility is to monitor the equipment and to direct employees to check and correct any malfunctions or irregular operations. MM maintained that he has asked all the supervisors to assign and monitor the equipment as much as possible. He further explained that Complainant's tour is the only tour where there is not much preventative maintenance to be done and therefore he asked Complainant to have the technicians monitor the equipment. On May 11, 2011, MM insisted that Complainant assign a technician to monitor the equipment because it was not being done, despite his repeated requests for Complainant to do so. MM testified he has had conversations with Complainant based on the fact that the technicians were sitting in the maintenance shop instead of at the machines.
In regards to incident 7, MM stated that the Area Office required the EWP audits, and that all tours were subject to the audit. MM provided that the audit was performed to verify the Postal Service was meeting the national requirements set forth by OSHA. He explained OSHA had been inspecting offices and finding infractions, so the Postal Service decided to create a program to verify compliance with OSHA standards. He further explained all USPS maintenance employees have to meet certain standards with tools and personal protection equipment. MM testified that all three of his supervisors have the same goals and responsibilities, and they all have the same requirements for each of their employees. MM further maintained that various audits are performed on each unit on all tours throughout the year because performance is constantly being reviewed. MM further provided that Complainant was selected for the Safety and Health Inspection because he worked Tour 3 (14:15 to 23:15) and the Safety Specialist was to be in the building on the December 16, 2010, at 16:00-17:00.
The Agency found that taking Complainant's harassment claim as a whole; he failed to produce any evidence to show that these actions were unwelcome personal slurs or other denigrating or insulting verbal or physical conduct. These incidents involved Complainant's work performance and management providing instructions. Further, the Agency found that Complainant failed to demonstrate that the actions were taken as a result of his protected bases. Finally, the Agency found that the incidents alleged did not rise to the level of discriminatory harassment. The Agency determined that the incidents were "matters which occupy the normal scope and course of industrial relations and partake of daily interactions between a supervisor and his or her employees" and were not sufficiently severe or pervasive to render his work environment hostile. The Agency further found that there was no basis to find the Agency liable for these actions. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant makes numerous arguments regarding the factual findings in the FAD. Complainant contends he was discriminated against and that he identified comparators outside of his protected class. Complainant also avers that he is discriminated against by MM and not the Agency. The Agency did not provide any statement on appeal.
ANALYSIS AND FINDINGS
As this 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 de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
To establish a claim of harassment, a Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the Complainant's statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
After a careful review of the record, including the Agency's response, and arguments and evidence not specifically addressed in this decision, we AFFIRM the FAD. We find that management articulated legitimate and nondiscriminatory explanations for its actions as they relate to the incidents alleged. Complainant failed to rebut these explanations or to otherwise present probative evidence that the routine personnel actions taken in regards to him constituted harassment. We do not find these matters to have been sufficiently severe or pervasive to have rendered the work environment hostile. Furthermore, nothing in the record support's Complainant's contentions that the Agency was motivated by discriminatory animus towards his protected bases.
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
_6/14/13_________________
Date
2
0120120054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120054