0120130121
03-20-2013
Londell Wiley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Londell Wiley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120130121
Hearing No. 480-2011-00331X
Agency No. 4F920010410
DECISION
On October 5, 2012, Complainant filed an appeal from the Agency's September 20, 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., and Section 501 of the Rehabilitation Act of 1973, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales, Service & Distribution Associate at the Agency's Lucerne Valley Post Office facility in California.
On October 21, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability1 (stress, anxiety), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on July 3, 2010, a coworker (CW: female, no claimed disability) verbally harassed Complainant and grabbed him by the shoulder;
2. on July 29, 2010 management made Complainant meet with CW and subjected him to questioning regarding the July 3, 2010 incident;
3. on August 26, 2010 Complainant's request for training was denied;
4. from July 3 through September 3, 2010, Complainant was denied representation;
5. on September 10, 2010, the Postmaster (P: female, no claimed disability) sent a coworker to spy on Complainant;
6. on August 3, 2010, P asked Complainant if he wanted to transfer and told Complainant not to be so sensitive;
7. on October 30 and November 18, 2010, Complainant was not permitted to use his cell phone while on duty;
8. on November 16, 2010, Complainant was not allowed to clock in until he had completed business-related paperwork;
9. on November 26, 2010, Complainant's request for annual leave was denied;
10. on November 29 and December 2, 2010, P denied Complainant access to timekeeping records;
11. on December 1, 2010, P denied Complainant's request for leave under the Family and Medical Leave Act (FMLA) and threatened Complainant with disciplinary action for his absence on that date; and
12. on an unspecified date, P divulged to CW that Complainant had asked her to tell CW not to confront 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 July 28, 2011 motion for a decision without a hearing and issued a decision by summary judgment (Decision) in favor of the Agency on September 10, 2012. Specifically, the AJ found that Complainant failed to establish that he was an individual with a disability and failed to state a claim of harassment because the actions complained of were insufficiently severe to constitute harassment and/or Complainant failed to show that such actions were based on his protected bases. In addition, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for some of the actions and that Complainant failed to show such reasons were pretextual.
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. The instant appeal followed.
ANALYSIS AND FINDINGS
We must 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.
To the extent Complainant has raised claims of disparate treatment, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
The AJ found that, with regard to claims 4, 5, 10, 11 and 12, Complainant failed to state prima facie cases of disparate treatment because Complainant failed to show that he was subjected to adverse treatment. We agree.2 While the AJ did not make the same finding with regard to claims 1, 2, 6, and 7, we similarly find that Complainant has not stated a prima facie case of disparate treatment because he has not shown he was subjected to adverse treatment when he was grabbed, when he was made to attend a meeting with his harasser, when he was asked if he wanted to transfer, and when he was not allowed to use his cell phone while on duty.
With regard to claims 3, 8, and 9, we find that Complainant has successfully stated a prima facie case when he claimed that his training request was denied, he was not allowed to clock in, and his request for annual leave was denied. The burden thus shifts to the Agency to articulate legitimate nondiscriminatory reasons for its actions. With regard to the denial of training, P averred that
Complainant asked to go to two separate trainings, Bulk Mail Training and WebBats training. I made the decision to approve the WebBats training for the Complainant decided [sic] to allow another employee, . . . to have the Bulk Mail Training. Of these employees, both are Sales & Services Associates, however, the Complainant is a PTF and [the other employee] is Full Time. I made this decision to have more flexibility with scheduling my employees. It is also significant to note that have approved other training for the Complainant. Last year he received Pass Port training.
Id., Affidavit B, p. 4.
With regard to clocking in, P averred that Complainant had been on leave for medical reasons and upon his return to work
Complainant was required to submit medical documentation to support his absence. I delayed the Complainant from clocking in until I could get clarification that the medical office concurred with his return to duty. Once he was cleared to return to duty, I allowed him to clock in and he was paid for the time he initially reported to duty.
Id., p. 10.
With regard to the denial of annual leave, P averred that the date in question
was Thanksgiving weekend. I denied the Complainant's request to be off because another employee, . . . had requested and was approved for this time off during the 2010 vacation bidding period and prior to the Complainant's request to be off. In addition another employee, . . . was off because of a family emergency (her father was ill). Therefore, I was not able to approve the Complainant's request to be off.
Id.
The burden thus returns to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reasons are a pretext to mask discrimination. Burdine, 450 U.S. at 256. A review of the record shows that Complainant did not address the Agency's articulated reasons for its actions, see ROI, Affidavit A, but merely repeated his belief that the Agency's actions were discriminatory. See id., pp. 4, 23-5. We note that, in order to overcome a summary judgment motion, "a mere recitation that there is a factual dispute is insufficient." See EEO-MD-110, 7-15. A party seeking to establish the existence of a genuine issue of material fact must do more than merely repeat the same facts initially raised in his formal complaint. See Patton v. United States Postal Service, EEOC Request No. 05930055 (July 1, 1993); Complainant, by not supporting his allegations concerning the denied training, the delayed clocking in, and the denied leave, failed to meet this test. Furthermore Complainant has not shown that the Agency's articulated reasons for its actions were pretextual.
In considering whether any of the actions listed by Complainant, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. 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).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
We note initially that with regard to claims 3, 8, and 9, a prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
The AJ found that, with regard to claims 4, 5, 10, 11 and 123 the actions "either did not occur as alleged or cannot be considered by a reasonable trier of fact as harassing or adverse to Complainant." Decision, p. 20. With regard to claim 10, the alleged denial to access certain records, AJ found that Complainant was provided access to the records he sought. With regard to claim 11, the alleged denial of FMLA leave, the AJ found that the leave request was granted. Finally, with regard to claim 12, the allegation that P told CW that Complainant had asked P to tell CW not to confront Complainant, the AJ found that Complainant admitted that he had no knowledge or evidence to support such an allegation.
A review of the record reveals that Complainant admits in his Affidavit that, with regard to claim 10, his request for the records was granted within a few weeks. See Report of Investigation (ROI) Affidavit A, pp. 32-3. With regard to claim 11, the record shows that Complainant's FMLA leave request was granted. See ROI, Exhibit 3, p. 7 and Exhibit 4. When asked about claim 12, Complainant admitted that "I don't know whether [P] told [CW] anything." ROI, Affidavit A, p. 39. We therefore find the AJ's findings regarding claims 10, 11 and 12 to be supported by substantial evidence.
With regard to the remaining claims 1, 2, 4, 5, 6, and 7 we find that the AJ correctly found that Complainant failed to show that he was subjected to harassment based on sex, disability, or in retaliation for engaging in protected EEO activity. The AJ noted that, while
the severity of the harassing conduct in which [CW] engaged was significant[,] . . . Complainant has not identified any evidence, and none appears in the . . . record, that [CW] harbored any bias based on [Complainant's bases] or that [Complainant's bases] played any factor whatever [sic] in [CW's] conduct towards him. Complainant's own affidavit testimony stated that [CW] commenced her conduct . . . because of a disagreement regarding a work-related issue. . . . Complainant did not allege, and there is no evidence in the . . . record that [CW] ever uttered any . . . epithets [based on Complainant's bases], slurs, or innuendos or otherwise engaged in any conduct that indicated Complainant's [bases] played a role in her behavior towards him.
Decision, p. 22.
While the AJ addressed only the issue of sex discrimination in the above finding, we find that, following a review of the record, the AJ's finding holds true for any claim of harassment based on disability and/or reprisal as well.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established there remain any genuine issues of material fact that require resolution through a hearing. Nor has Complainant met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the Agency's final order.
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
March 20, 2013
__________________
Date
1 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
2 With regard to claim 11, while the denial of FMLA leave would be an adverse action, the AJ found that Complainant failed to state a prima facie case because "Complainant admitted that, in fact, his request for leave was granted." Decision, p. 20. The evidence of record shows that Complainant's FMLA leave request was granted. See ROI, Exhibit 3, p. 7 & Exhibit 4.
3 Numbered 13 in the AJ's Decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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