0120065263
05-30-2008
Joseph A. Franklin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph A. Franklin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200652631
Agency No. 1K-201-0015-06
DECISION
Complainant filed an appeal with this Commission from the August 18,
2006 agency decision finding no discrimination.
In his complaint, complainant alleged that the agency discriminated
against him on the basis of reprisal for prior EEO activity when: (1)
on January 4, 2006, complainant was given a pre-disciplinary interview;
(2) on January 13, 2006 and January 14, 2006, complainant was instructed
to report to a work area outside of his medical restrictions; (3) on
February 9, 2006 and March 8, 2006, complainant was instructed to provide
updated medical information; (4) on March 8, 2006, complainant was denied
a light duty assignment; and (5) on March 10, 2006, and continuing,
complainant was sent home.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued its decision pursuant to 29 C.F.R. �
1614.110(b).
In its decision finding no discrimination, the agency first noted that
in its April 5, 2006 Partial Dismissal of the complaint, it dismissed
claims (1) and (3) on the grounds that claims (1) and (3) failed to state
a claim. The agency also noted that it dismissed the claim of harassment
on the ground that the claims, when considered together or separately,
failed to state a claim of harassment.
The agency next addressed in its decision whether it had retaliated
against complainant by engaging in the conduct alleged in remaining claims
(2), (4), and (5). The agency found that complainant had satisfied three
elements of a prima facie case of reprisal: (1) complainant had engaged
in prior EEO activity; (2) the Manager of Distribution Operations (MDO)
was aware of complainant's prior EEO activity; and (3) complainant
was subjected to an adverse action. The agency further found that
complainant had failed to satisfy the fourth element of a prima facie case
of reprisal. In so finding, the agency noted that complainant failed to
show that there was a causal connection between his protected activity
and the adverse actions, indicating that the adverse actions of which
complainant complained in claims (2), (4) and (5) had occurred in January
and March 2006, while his prior EEO activity occurred in June 2005.
The agency further concluded that even if complainant had established
a prima facie case of reprisal, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim (2), the
agency found that the medical limitations that complainant submitted to
the MDO permitted him to work in his regularly assigned unit performing
the duties outlined in a letter, dated January 13, 2006, which directed
him to report to his regular unit on January 14, 2006. Regarding claim
(4), the agency found that based on the medical limitations submitted by
complainant to the MDO, complainant could work in his regular bid work
position and there was no need for the agency to approve his light duty
request on March 8, 2006. Regarding claim (5), the agency found that
complainant was not permitted to work because he failed to provide the
MDO with updated medical documentation regarding his work restrictions,
noting that on March 8, 2006, complainant had been notified that he
had been provided with the proper form to use for updating his medical
documentation.
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Administration., EEOC
Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell Douglas,
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).
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute reprisal. See Sanders v. Department
of Education, EEOC Request No. 05990744 (October 13, 2000). (citing EEOC
Compliance Manual Section 8, "Retaliation;" No. 915.003 (May 20, 1998)).
The statutory reprisal clauses prohibit any adverse treatment that is
based upon a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity.
To establish a prima facie claim of harassment based on race, sex,
national origin, disability, age, or reprisal, complainant must show
that: (1) complainant is a member of the statutorily protected class;
(2) complainant 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 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. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982); 29 C.F.R. � 1604.11.
A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
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).
Because 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).
As an initial matter, the Commission will address the agency's Partial
Dismissals issued pursuant to 29 C.F.R. � 1614.107(b). The record
contains two Partial Dismissals, one dated March 31, 2006, and the other
dated April 5, 2006. The March 31, 2006 dismissal addressed claims
(1) to (4), which were then the only existing claims. In its March 31,
2006 dismissal, the agency dismissed claims (1) and (3), pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. Regarding claim
(1), the agency reasoned that a pre-disciplinary interview did not render
complainant aggrieved because complainant was not harmed by the incident,
noting that there was no evidence that complainant was issued discipline
as a result of the pre-disciplinary interview. Regarding claim (3), the
agency asserted that it was management's right to direct employees in the
performance of an employee's official duties. Regarding complainant's
overall claim of harassment, the agency concluded that the record failed
to demonstrate that claims (1) to (4) were severe or pervasive enough
to create a discriminatorily hostile work environment. In its April 5,
2006 dismissal, the agency allowed complainant's to amend his complaint
by adding claim (5). The agency renewed its dismissal of previously
dismissed claims (1) and (3) and, also, its dismissal of complainant's
claim of harassment, including the newly added claim (5).
Upon review, the Commission finds that complainant is making a single
claim of retaliatory harassment. Accordingly, each alleged incident
is part of the overall claim of harassment. Therefore, for the agency
to have dismissed claims individually was improper. For example, the
pre-disciplinary interview has to be considered within the context of
the broad claim of retaliatory harassment. If a proposed action is
purportedly combined with other acts of harassment to form an alleged
pattern of harassment, the agency may not properly dismiss it.
Assuming without deciding that complainant stated a claim of harassment,
the Commission finds that the agency articulated legitimate,
nondiscriminatory reasons in its decision finding no discrimination
for its actions in claims (2), (4), and (5). Because we find no
discrimination for the incidents in claims (2), (4), and (5), the
harassment can consist, at most, of the incidents in claims (1) and (3).
We find that the incidents in claims (1) and (3) are insufficiently
severe or pervasive so as to constitute a hostile work environment.
In addition, regarding claims (1) and (3), the record establishes
legitimate, nondiscriminatory reasons for the agency's actions. We find
regarding claim (1) that the pre-disciplinary interview was conducted
because of complainant's attendance. We find regarding claim (3) that
the agency was exercising appropriate authority in directing complainant
to provide medical documentation to support his work restrictions.
Complainant has not shown that any of the agency's actions were pretextual
or motivated by retaliatory animus. At all times, the ultimate burden of
persuasion remains with complainant to demonstrate by a preponderance of
the evidence that the agency's reasons for its actions were pretextual or
motivated by discriminatory animus. Complainant has failed to do so.
Accordingly, the agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 30, 2008
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120065263
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065263