01A10258
04-26-2002
Michael L. Potts, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Michael L. Potts, Sr. v. United States Postal Service
01A10258
April 26, 2002
.
Michael L. Potts, Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A10258
Agency No. 1C441012098
Hearing No. 220995199X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful 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 appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the bases
of his race (Black), color (light-skinned), sex (male), and age (D.O.B:
January 1, 1952) when:
(1) On February 24, 1998, he was placed on Emergency Placement in
Off-Duty status (without pay),<1> and by correspondence dated April 3,
1998, he was issued a Notice of Removal for Conduct Unbecoming A Postal
Employee; and Threatening Statements and Intimidating Behavior Towards
Another Postal Employee; and,
Since he started working November 4, 1997, co-workers have badgered him,
and several supervisors have harassed him, by not giving him an agreed
to off day and by not paying him higher level when others were so paid.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant was employed as a Part-time
Flexible Mail Processor, PS-4, at the agency's General Mail Facility,
in Cleveland, Ohio. On February 24, 1998, complainant was involved in
a verbal altercation with a co-worker (C1). As a result, both employees
were placed in non-duty, non-pay emergency leave status. On May 3, 1998,
complainant was issued a Notice of Removal for threatening a co-worker.<2>
Believing he was a victim of discrimination, complainant filed a formal
EEO complaint with the agency on May 21, 1998, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sex, race, color or age discrimination. Specifically, the AJ found
that complainant failed to demonstrate that similarly situated employees
not in his protected classes were treated more favorably under similar
circumstances. The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to establish as pretextual. Specifically, he was placed on emergency
leave because of the agency's zero tolerance policy for threats made
by an employee to a co-worker. After management reviewed the Postal
Inspectors' Investigative Memorandum (IM), and concluded that the
allegation was credible, complainant was issued the Notice of Removal.
The AJ found no evidence to establish that the agency's actions were
motivated by animus toward complainant's race, color, sex or age.
Additionally, the AJ concluded, as to complainant's harassment claim,
that complainant had not been harassed based on the alleged purviews.
In so finding, the AJ concluded that complainant's day off request was
denied based on the needs of the service. In addition, complainant did
not prove his entitlement to higher level pay, under the union contract
and agency regulations for performing sleeving and/or allying work at the
PS level 6. As to complainant's allegations regarding his co-worker's
badgering of him, the AJ cited complainant's testimony that C1 harassed
him because he was jealous. The AJ noted that jealousy is not a covered
basis under Title VII or the ADEA.
The agency's final decision implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Department of Health and Human Services, EEOC Request No. 05900467
(June 8, 1990); Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990).
Assuming arguendo that complainant established a prima facie case of
discrimination based on the alleged purviews, we turn to the agency to
articulate legitimate, nondiscriminatory reasons for its actions.
Denial of Day Off Request: The request was denied based on the needs of
the agency. Additionally, complainant failed to submit a leave slip 30
days prior to the day in question, as required. See Hearing Transcript
(HT), p. 143; Report of Investigation (ROI), p. 203, 206.
Denial of Higher Level Pay for Sleeving/Allying: Mail processors were
getting higher level pay at one point for this work, however this was a
mistake. Only the Expediters are supposed to receive higher level pay.
Once the Acting MDO (MDO) spoke with complainant's supervisor (S1)
about the matter, this practice was discontinued for everyone. See HT,
p. 120, 145; Report of Investigation (ROI), p. 203, 207, 215.
Placement on Emergency Leave: Standard policy was followed. HT, p. 116,
138; ROI, p. 198, 204, 215.
Waiting in Office for Three Hours: MDO denied knowing that complainant had
been waiting so long. See HT, p. 131. The Postal Inspector testified
that it took that long to get to interviewing complainant because it
is standard procedure to interview others first, and collect witness
statements. See HT, p. 99.
Notice of Removal: C1 reported that complainant had threatened to kill
him. See HT, p. 137-8; ROI, p. 197. The decision to remove complainant
was made jointly by S1 and MDO. See ROI, p. 215. S1 and MDO indicated
that they believed complainant had threatened C1 and posed a potential
danger to those working in the plant. See ROI, p. 203, 207. S1 and MDO
additionally stated that they relied on the IM and witness statements,
in addition to those of complainant and C1. See ROI, p. 203, 207; HT,
p. 117. The removal was issued based upon the agency's zero tolerance
policy for threats made by one employee to another, whether in jest or
not. See HT, p. 159; ROI, p. 215. Complainant was given an opportunity
to tell his side of the story. See HT, p. 117.
We turn now to complainant to establish that the agency's reasons are
pretextual. Complainant's principal argument is that he was set up or
framed to go to jail. He additionally argues that S1 had the following
motives for discriminating against him: (1) S1 was himself derelict of
duty; (2) S1 saw an opportunity to illegally detain him for 2 hours and 45
minutes while he looked for witnesses; (3) S1 was jealous of complainant's
�healthy� paycheck; (4) S1 is racist; (5) complainant only dates women,
and he ignored S1's hints about going to hotels; (6) S1 had political
motives. In his EEO Investigative Affidavit, complainant states the
following: �I am citing race, but am not certain why. I am citing color
because there is prejudice against light skinned Blacks � and I feel
[S1 and MDO] might feel that way. I am citing gender because women who
performed higher level tasks in my unit were paid higher level when I was
not � and they also got off days that they requested, while I did not.
I am claiming age because I feel that Management was trying to get rid
of me because I am older employee � and younger employees got higher
level pay for higher level work, and were also allowed to take days off
that they requested, while I was not.� Complainant consistently denies
threatening C1, and no witness testified to having heard complainant
threaten C1. However, evidence of record indicates that complainant
had made comments related to guns in the past. For instance, several
individuals asserted that complainant once stated �I want to get my gun
and shoot it. I feel like killing something.� See ROI, p. 173, 184.
We are not persuaded by a preponderance of the evidence, that management's
removal of complainant was motivated by discrimination, as opposed to
management's belief that C1's allegations were credible, based perhaps in
part on complainant's history of making gun-related statements. However,
even assuming for the sake of argument that complainant did not make the
threatening statement, complainant has not persuaded the Commission,
by a preponderance of the evidence that the agency determined that he
did so and chose to remove him because of a discriminatory animus toward
him because of his sex, race, color or age.
Harassment
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) he was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on his membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The evidence in the record
is insufficient to support a finding that management's actions towards
complainant were based on either his sex, race, color or age. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6. We note another Mail Processor's
statement of record, that after a commotion over the issue, management
ceased giving higher level pay to all Mail Processors. See ROI, p. 201.
In so finding, we additionally note that complainant failed to establish
the dates and times when he was allegedly denied higher level pay,
or to establish with certainty which day off he was denied, or that
someone outside his protected class was given the day off.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's sex, race, color or age.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
April 26, 2002
__________________
Date
1 Complainant also alleges that after he
was removed from the floor, he requested that a union representative
be present. He contends that he was made to wait in an office for nearly
three hours before a union representative arrived, and before the Postal
Investigator asked him what had transpired.
2 Complainant's removal was based on C1's allegation that complainant
had threatened to kill him. C1 also was subsequently terminated, but
for reasons unrelated to this incident.