0120063558
10-02-2007
Michael S. Struthers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael S. Struthers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200635581
Agency No. 1C-151-0049-04
Hearing No. 170-2005-00355X
DECISION
Complainant timely initiated an appeal from the agency's May 9, 2006 final action concerning his equal employment opportunity (EEO) complaint claiming 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
During the relevant time, complainant was employed as Maintenance Operations Support Clerk, PS-06, at the agency's Pittsburgh Processing and Distribution Center in Pittsburgh, Pennsylvania.
On October 13, 2004, complainant filed a formal complaint. Therein, complainant claimed that he was subjected to harassment in reprisal for prior EEO activity when:
on July 16, 2004, he was issued a 7-day suspension.
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the alternative, an Agency's Motion for Decision Without Hearing.
In its motion, the agency requested that the AJ issue a decision without a hearing in its favor. The agency argued that complainant's complaint had been rendered moot pursuant to 29 C.F.R. � 1614.107(a)(5). Specifically, the agency stated that a May 2005 grievance resolution provided for the 7-day suspension to be expunged from complainant's file, and that it did not result in any adverse action for complainant.2 The agency nonetheless argued that complainant failed to establish a prima facie case of reprisal discrimination, because he did not show a nexus or causal connection between his prior activity and the instant matter, concluding that his prior EEO activity was too long ago to establish causality. The agency argued that even if complainant established a prima facie case, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were pretext for discrimination.
The former Acting Station Manager (SM) of the agency's Greentree Post Office stated that on July 2, 2004, he received a telephone call from complainant, who had called as a concerned customer, in which he expressed his displeasure with a delivery problem that occurred at his residence. Specifically, SM stated that complainant claimed a package had been delivered to his residence but that the carrier left it on the grass instead of in a secure location. SM stated that he advised complainant to write a statement so that he could have something on record to let the carrier where he would like packages delivered in the future. SM stated that complainant then became angry and stated "You must be one of those guys that was fed by a silver spoon. I don't need to send you anything, I have twenty years in maintenance, I know the rules." The record reflects that after SM asked complainant if there was anything further he could do for him, complainant replied "Yes, you can come down and suck my dick." SM further stated that complainant's comments "escalated into a need for [complainant] to challenge authority with his credentials and ended in disrespect for authority and violation of the Post Office zero tolerance policy with words that were both unnecessary and unwelcome." SM stated that following the unpleasant telephone conversation with complainant, he notified the Manager, Maintenance Operations of the incident. Furthermore, SM stated that prior to the July 2, 2004 telephone incident "I have never met, spoken with, worked with or otherwise been aware of [complainant]..."
The Supervisor, Maintenance Operations (Supervisor) stated that he was the deciding official to issue complainant a 7-day suspension for improper conduct. The Supervisor stated that on July 14, 2004, he and a Supervisor Maintenance conducted a pre-disciplinary interview with complainant to determine what had occurred on July 2, 2004 with SM. The Supervisor stated that during the interview, complainant was provided an opportunity to explain the July 2, 2004 telephone incident. The record reflects that complainant denied that he phoned the Greentree Post Office or that he had used inappropriate language to SM. The Supervisor stated that he made a determination to issue complainant a 7-day suspension because complainant had prior discipline, and "the Letter of Suspension is the next progression of discipline." The Supervisor stated that during the relevant time he was unaware of complainant's prior EEO activity. Furthermore, the Supervisor stated "I am not aware of any EEO Activity concerning [Complainant], and had no bearing on this Letter of Suspension."
The record contains a copy of complainant's "Notice of Suspension of 14 Days of Less" dated July 16, 2004. Therein, complainant was placed on notice that he would be suspended for seven days for improper conduct from August 30, 2004 to September 8, 2004. Complainant was also notified that his conduct on July 2, 2004 was a violation of Employee and Labor Relations Manual Section 666.2 "Behavior and Personal Habits." Therein, Section 666.2 provides that "employees are expected to conduct themselves during and outside of working hours in a manner which reflects favorably upon the Postal Service. Although it is not the policy of the Postal Service to interfere with the private lives of employees, it does require that postal personnel be honest, reliable, trustworthy, courteous, and of good character and reputation. Employees are expected to maintain satisfactory personal habits so as not to be obnoxious or offensive to other persons or to create unpleasant working conditions."
On April 27, 2006, the AJ granted the agency's motion for a decision without a hearing, finding there was no genuine issue of material fact in dispute and found that complainant had not been discriminated against. The AJ found that complainant failed to establish a prima facie case of reprisal discrimination. Specifically, the AJ noted that SM and the Supervisor were unaware of complainant's prior EEO activity during the relevant time. The AJ found complainant had not established that he was treated differently than two identified similarly situated employees outside his protected class. Furthermore, the AJ found that considering the facts of the case in the light most favorable to complainant he failed to successfully rebut the agency's articulated reasons for its actions.
The agency issued a final action dated May 9, 2006, wherein it implemented the AJ's decision finding no discrimination.
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-party 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 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. See 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. See 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. See 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); 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).
The Commission finds that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not established that the agency's reasons were a pretext for discrimination. Although the AJ did not specifically address complainant's harassment claim, we find that the incidents of harassment identified by complainant were neither sufficiently pervasive nor severe to create a hostile work environment. We discern no basis to disturb the AJ's decision.
Finally, the Commission notes that on appeal, complainant raises new claims of ongoing harassment, non-selection and removal from agency employment. These claims were not previously raised. It is therefore inappropriate for complainant to raise the new claims for the first time as part of the instant appeal.
The agency's final action implementing the AJ's finding of no discrimination is AFFIRMED.3
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
October 2, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the above referenced appeal number.
2 The record does not contain a copy of complainant's May 2005 grievance resolution.
3 Because we affirm the AJ's finding of no discrimination for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. mootness).
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0120063558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063558