0120131936
09-06-2013
Minh C. Le, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Minh C. Le,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120131936
Hearing No. 480-2010-00459X
Agency No. 4F-920-0006-10
DECISION
On April 4, 2013, Complainant filed an appeal from the Agency's March 27, 2013, 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. 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 Window Clerk at the Agency's Margaret L. Sellers Processing and Distribution Center facility in San Diego, California.
On January 31, 2010, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the basis of sex (male). In support of his claim of harassment, Complainant asserted that the following events occurred:
1. From 2005 through March 2009, Complainant's supervisor (Supervisor) stared at him; crossed her legs suggestively; told him that she missed him after he returned from leave; and tapped the upper portion of her thighs while she watched him load boxes;
2. In 2006, Complainant was denied passport training;
3. In September 2008, the Supervisor denied Complainant's requested vacation schedule;
4. In March 2009, the Supervisor did not post available vacancies;
5. On October 16, 2009, the Supervisor denied him overtime;
6. On October 26, 2009, the Supervisor told him that she would not rotate him for overtime because he was slow; and
7. On December 23, 2009, the Supervisor instructed him to switch schedules with another employee.
Complainant also asserted that he was subjected to harassment based on sex and in reprisal for the instant complaint. In support of his assertion, Complainant indicated that (8) on December 7, 2009, the Supervisor gave him a job discussion during which Complainant was told to stop going into penalty overtime status, to stop telling other clerks to go on break, and to stop telling other clerks to help him in the store
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. The AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on March 13, 2013.
Specifically, as to claim (1), the AJ found that there were no material facts in dispute. As to the events raised by Complainant in support of his claim of harassment, the AJ noted that Complainant alleged that shortly after the Supervisor's arrival in 2005, she came over to the drive through window are where Complainant was counting his cash drawer. Complainant stated that the Supervisor pulled a high chair away from the counter and sat down to talk on her cell phone. Complainant believed the Supervisor "flashed" him when she crossed her legs. He also noted that when he returned from leave, the Supervisor would greet him by saying, "Oh, I missed you." Then in 2006, the Supervisor was observing Complainant as he helped a customer at the window. He asserted that the "staring" was so intense, it made the customer uncomfortable. Complainant also claimed that the Supervisor made a comment in 2008 or 2009 regarding his clothing. Complainant noted that he came into the office wearing regular clothes. The Supervisor remarked that he looked good without his uniform on. Finally, Complainant indicated that he had to move some boxes in 2008 or 2009. He claimed that each time he passed the Supervisor, she was tapping her leg.
In addition to claim (1), Complainant offered claims (2)-(7) in support of his claim that he was subjected to harassment. Complainant claimed that he was denied passport training in 2006. The Supervisor noted that at the time, she had five clerks who had the training and there was no need in 2006 to send him to passport training. Complainant also asserted that he was denied annual leave in September 2008, while another male co-worker was permitted to take leave. The Supervisor indicated that the co-worker had transferred to the facility from another location. He had previously requested and was granted leave. As such, the Supervisor stated that they had to honor the co-worker's leave request. Complainant asserted that the Supervisor failed to make him and his co-workers aware of vacancies. He believed that the Supervisor did not want him to get a job away from her or her unit. On October 16, 2009, Complainant was denied overtime. The Supervisor denied the overtime because he had taken leave that morning. Then on October 26, 2009, the Supervisor took Complainant off the overtime rotation because he worked at a slower pace than his colleagues. When the Supervisor tried to provide support for her assertion, Complainant refused to believe the Agency's productivity report. Finally, the AJ found that Complainant asserted that on December 23, 2009, the Supervisor told Complainant that his Saturday start time would be 8:00 a.m. and a female co-worker would begin at 7:00 a.m. The Supervisor indicated that there were four bid positions which were eliminated. On December 23, 2009, Complainant, as the second most senior clerk, was awarded a post-realignment bid which was like his prior position but for the start time while the female co-worker with more seniority was awarded the bid with an earlier start time.
The AJ analyzed Complainant's claim of sexual harassment. The AJ found that Complainant failed to show that the events taken as a whole were severe or pervasive enough to create a hostile work environment. Furthermore, the AJ determined that Complainant could not establish that the events indicated were sex-motivated. The AJ found neither direct evidence nor circumstantial evidence to establish that the Supervisor's actions were based on Complainant's sex. As such, the AJ concluded that Complainant failed to show that he was subjected to a hostile work environment due to his sex.
As to Complainant's claim of reprisal and sex discrimination listed as claim (8), Complainant asserted that, on December 7, 2009, the Supervisor gave him a job discussion during which Complainant. The AJ determined that the Supervisor provided legitimate, nondiscriminatory reasons for her actions. The Supervisor indicated that Complainant was not in a position of authority and he had to remind Complainant that he could not tell other clerks to go on breaks or to tell other clerks to relieve him. In addition, the Supervisor asked Complainant to avoid working overtime without permission and to follow the directions given to him by the leadership. Finding that the Agency provided legitimate, nondiscriminatory reasons for the discussion, the AJ turned to Complainant to show that the Agency's reasons were pretext for unlawful discrimination and/or retaliation. The AJ found that Complainant failed to do so. As such, the AJ concluded that Complainant was not subjected to disparate treatment with regard to claim (8).
As such, the AJ issued a decision without a hearing. 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.
This appeal followed. On appeal, Complainant asserted that sexual harassment does not take the form of other harassment. He indicated that the Supervisor's actions were directed at him because he did not respond to her showing of affection. As such, he was subjected to harassment and a hostile work environment from 2005 through 2009. The Agency requested that we affirm its decision to implement the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
Summary Judgment
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Harassment
In claims (1) - (7), Complainant alleged events in support of his claim of sex-based harassment. It is well-settled that harassment based on an individual's sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes; (2) he was subjected to unwelcome conduct related to his membership in those classes; (3) the harassment complained of was based on sex; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review, we find that the AJ's finding that Complainant failed to show that the alleged events constituted a hostile work environment or that the events occurred based on his sex. As such, we determine that the AJ correctly concluded that Complainant had not shown that he was subjected to sexual harassment.
Disparate Treatment
In claim (8), Complainant asserted that he was subjected to disparate treatment due to his EEO activity and his sex. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the AJ properly determined that the Agency provided legitimate, nondiscriminatory reasons for the December 7, 2009, job discussion. Furthermore, the AJ correctly held that Complainant failed to demonstrate that the Agency's reasons were pretext for discrimination. As such, we find that the record supports the AJ conclusion that Complainant was not subjected to unlawful discrimination and/or retaliation as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action implementing the AJ's finding of no discrimination and/or harassment.
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
September 6, 2013
__________________
Date
2
0120131936
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131936