0120101706
08-17-2010
Markus W. Maxison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Markus W. Maxison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120101706
Hearing No. 440-2010-00031X
Agency No. 4J-604-0063-09
DECISION
On March 12, 2010, Complainant filed an appeal from the Agency's February 11, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency's North University Station in Peoria, Illinois. Complainant's Affidavit at 2. On March 14, 2009, co-worker allegedly came to Complainant's work place and in a threatening and physically aggressive manner accused Complainant of not properly completing his duties as a substitute on the co-worker's route. Among the things the co-worker allegedly said to Complainant was "Yeah, go and tell someone you fucking nigger." Id. at 6.
On July 7, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black) and in reprisal for protected EEO activity under Title VII when:
1. On March 14, 2009, Complainant was threatened and called a racial slur by a co-worker, and appropriate action was not taken when Complainant reported the incident.
2. Complainant has endured retaliation from co-workers and management since his EEO claim.
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 requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to file his request for a hearing within the applicable time frame. The AJ remanded the complaint to the Agency, and 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.
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").
We note Complainant does not challenge the AJ's Order to dismiss his request for a hearing on the grounds that the request was untimely filed and we find no basis to disturb the AJ's Order. Moreover, we note Complainant does not challenge the Agency's framing of his complaint as set forth in the Agency's final decision.
Issue (1)
To establish a claim of harassment complainant must show that: (1) he is a member of the 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). 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In a case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999); 29 C.F.R. � 1604.11(d).
The Commission assumes arguendo that Complainant satisfies the first four prongs of the analysis; however, Complainant's claim fails on the final prong. Complainant is unable to prove by a preponderance of the evidence that there exists any basis for imputing the co-worker's conduct on March 14, 2009, to the Agency. The record clearly shows that after Complainant reported the incident to management, Complainant's supervisor immediately had Complainant come to her office to write a statement regarding the incident behind a locked door and permitted Complainant to stay in her office until the co-worker was removed from the station. Supervisor 1's Affidavit at 2-4.
After the co-worker was removed from the station, Complainant was told to return to work. Complainant began performing his route, but returned without completing his route due to concerns for his safety. The Agency divided Complainant's route up between other carriers and Complainant went home. Station Manager's Affidavit at 3. Complainant does not allege that any disciplinary action was taken against him for failing to finish his route on March 14, 2009.
Although Complainant contends that the Station Manager attempted to dissuade him from contacting the police by stating that Complainant was a "pretty big, nice-sized guy" and that Complainant "would be able to defend [himself]," we note the Station Manager denied making this statement and Complainant has no evidence supporting his contention that this statement was made. Moreover, the record reveals the Station Manager promptly contacted the police herself, immediately removed the co-worker from the premises, and the same day placed the co-worker in an Emergency Placement in an Off-Duty Status. Station Manager's Affidavit at 4; ROI at 136. As a result of the March 14, 2009 incident, the co-worker was subsequently issued a Notice of Removal for "Unacceptable Conduct." Report of Investigation (ROI) at 137-142.1 We note Complainant has not alleged any additional instances of harassment by the co-worker subsequent to the corrective actions taken by the Agency. With regard to issue (1), the Commission finds that Complainant has not proven unlawful harassment.
With regard to issue (1), to the extent Complainant is alleging disparate treatment based on his race, apart from the March 14, 2009 incident, Complainant points to no adverse action taken by the Agency against him which could form the basis for a disparate treatment claim. Complainant was subjected to harassment at the hands of a co-worker, and the Agency, upon learning of the harassment, took prompt corrective action to remedy the situation. Thus, for the reasons given above, the Commission finds that Complainant has not proven unlawful discrimination based on race.
Issue (2)
Complainant also alleges that he has been subjected to retaliatory harassment from co-workers and management since his EEO claim surrounding the March 14, 2009 incident. Specifically, Complainant alleges that his Station Manager involuntarily assigned him to another office, he was required to carry extra mail without assistance on May 9, 2009, he was directed to take out overdue "marriage mail" on May 21, 2009, and he was required to assist in sorting mail for Route 15 on July 7, 2009.
With regard to his claim that he was involuntarily assigned to another office, the record reveals that the Station Manager was responding to Complainant's stated fear of the co-worker who caused the March 14, 2009 incident. Specifically, the Station Manager stated that after complainant told her he felt threatened on his regular route, since the co-worker knew that route, she offered him an opportunity to switch his position to a vacant route at another station. Station Manager's Affidavit at 7. The Station Manager stated that after speaking with Complainant, she assigned him to a different route at the East Peoria Branch while he decided whether he wanted to change to another station. Id. at 7-8. Complainant ultimately decided he did not want to take the reassignment, so he was returned to the North University Station as a Relief Carrier on Route 7. Id. at 8. Complainant failed to show that the Agency's actions with regard to his temporary assignment to another office were based on his protected status.
Complainant also claims that he was required to carry extra mail by Supervisor 2 without assistance on May 9, 2009. However, the record indicates Complainant did not work on May 9, 2009. Supervisor 2's Affidavit at 4.
With regard to Complainant's claim that he was overburdened when he was directed to take out "marriage mail" on May 21, 2009, Supervisor 3 noted that Complainant worked six hours on that day on a route that evaluates at 7:45. Supervisor 3's Affidavit at 3. Thus, there is no evidence Complainant was overburdened on the route.
Complainant states that Supervisor 3 requested he assist in sorting mail for Route 15, on July 7, 2009, and he states that although he did assist, Supervisor 3 lied and said he did not. Complainant also states that Supervisor 4 claimed he did not sign his time sheet that day; however, he states that he did sign it. Supervisor 3 states that the station was short staffed and every RCA was told they would have to help at least 45 minutes that day. Supervisor 3's Affidavit at 3. She states Complainant was asked to "put up all dps" which would take about 45 minutes and he only did so for 15 minutes. Id. Supervisor 3 stated that since Complainant did not complete the dps assignment, he would have to carry a 30 minute split on the street. Id. Supervisor 3 stated Complainant refused to do this. Supervisor 4 notes the Station Manager asked her what time Complainant went to the street on July 7, 2009, and she told the Station Manager Complainant did not sign out. Supervisor 4 states no pay was withheld from Complainant.
Finally, Complainant claimed that he called the Station Manager several times to discuss the treatment he had received from Supervisor 4. The Station Manager stated that Complainant called her several times on her personal cellular phone and left messages for her to call him back. Station Manager's Affidavit at 12. She explains that she did not answer her personal cellular phone since she did not have a witness to verify the content of the calls and Complainant had already filed an informal complaint against her. Id. Moreover, the Station Manager states that she placed return calls to Complainant each time on her work phone; however, those calls went to his voice mail. Id.
With regard to the incidents alleged in issue (2), we find that Complainant has failed to show that any of the alleged incidents were related to his race. Moreover, other than the incident involving the Station Manager's refusal to answer Complainant's calls on her personal cellular phone, Complainant has failed to show that the Agency's actions were motivated by his EEO activity. The Station Manager stated that she refused to answer Complainant's calls on her cellular phone due, in part, to the fact that he had an EEO complaint filed against her. However, the record reveals that the Station Manager did return Complainant's calls from her work phone. Accordingly, we find Complainant has not shown that he was subjected to prohibited discrimination.
CONCLUSION
Accordingly, the Agency's final decision finding 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 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
August 17, 2010
__________________
Date
1 Pursuant to a grievance settlement, the Emergency Placement and Notice of Removal were reduced to a Seven-Day Suspension on May 19, 2009. ROI at 143.
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0120101706
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101706