0120103176
01-24-2011
Joseph J. Mulvaney, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Joseph J. Mulvaney,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120103176
Agency No. 1G-784-0008-08
DECISION
Complainant filed an appeal from the Agency's July 23, 2010 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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.
BACKGROUND
During the relevant period, Complainant worked as a Maintenance Mechanic at a Corpus Christi, Texas general mail facility. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (degenerative joint disease, sural sensory peripheral neuropathy, flare-ups of paralysis to both legs) and reprisal for prior protected EEO activity when (1) on August 1, 2008, management denied his request for reasonable accommodation and, around October 2008, refused to grant him a reasonable accommodation; (2) between August 31, 2008 and September 3, 2008, management denied him the opportunity to go to Arkansas to move a machine to Corpus Christi and sent a junior employee instead; and (3) management subjected him to hostile work environment harassment by, on October 8, 2008, informing him that he was being disciplined for using too much sick leave and that all future sick leave requests would be denied and by, in February 2008 and July 2008, denying his Family and Medical Leave Act (FMLA) requests. Complainant stated that he has chronic conditions and can not control when he will have to be absent from work.
Initially, the Agency accepted (1) and (2) for investigation and dismissed (3) for procedural insufficiency under 29 C.F.R. �� 1614.107(a)(1) & (a)(2). The Agency completed an investigation of (1) and (2) and issued a decision finding no discrimination for those matters. Complainant appealed the partial dismissal to this office, which was docketed as Mulvaney v. U.S. Postal Service, EEOC Appeal No. 0120091940. In 0120091940, issued on August 31, 2009, the Commission vacated the Agency's finding as to (1) and (2) and remanded (3) for an investigation to supplement that conducted for (1) and (2). The Commission identified (3) as a harassment claim.
As to (1), the District Reasonable Accommodation Committee (DRAC) Chairperson stated "[C]omplainant's request for reasonable accommodations was denied because his physician stated he was able to perform the functions of his position." The Agency provided medical documentation from a Department of Veterans Affairs Clinic provider to support its contention. Further, the DRAC Chairperson stated "[C]omplainant was encouraged to reapply for FMLA leave and submit any and all documentation requested of the FMLA office to determine eligibility." Complainant's second level supervisor (S1) stated that Complainant indicated that he had no restrictions but requested an accommodation for periodic leave.
For (2), S1 stated that he selected another employee to assist a move from Arkansas because selection of Complainant would have required the Agency to pay him 8 hours of penalty overtime pay. S1 added that the scheduled move date was Complainant's non-scheduled day. S1 stated that it was a "sound financial business decision."
During the supplemental investigation for (3), S1 stated that he does not recall or have record of speaking with Complainant about his attendance but Complainant used 27.33 hours of sick leave in the 90 days before October 8, 2008. S1 added that 24 hours of the 27.33 were unscheduled, which would prompt a discussion with an employee. S1 stated that an employee who has three unscheduled absences in a 90 day period is given an undocumented meeting and an opportunity to correct his behavior, and that management gives a documented, pre-disciplinary interview if the behavior is not corrected. S1 stated that he did not state that all future sick leave requests would be denied. S1 indicated that, in February and July 2008, Complainant gave him FMLA requests citing "knee pain" to submit to the FMLA Coordinator. During the Agency investigation, its FMLA Coordinator stated that she denied Complainant's February and July 2008 FMLA requests because he submitted incomplete medical certification and failed to correct the problem.
At the conclusion of its 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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed, in which Complainant stated that the Agency failed to analyze his claim as hostile work environment harassment.
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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). 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 (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. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of a statutorily protected class; (2) he 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. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. 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 (March 8, 1994).
In the instant case, we find that, assuming the actions Complainant alleged rose to the level of a hostile work environment, Complainant failed to show that said actions were based on discriminatory motives.1 The Agency indicated that, based on medical documentation, it determined Complainant's request was more appropriate under FMLA and Complainant failed to submit a complete FMLA request. Further, the Agency indicated that it did not send Complainant to Arkansas for financial reasons. To the extent that Complainant alleged disparate treatment, we find that he failed to show pretext by a preponderance of the evidence. Based on the above, we AFFIRM the final agency decision.
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
___January 24, 2011____
Date
1 We assume for the purpose of analysis that Complainant is an individual with a disability. See 29 C.F.R. � 1630.2(g)(1).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120103176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103176