03990136
12-17-1999
Petitioner, )
Jehue V. McDonald v. United States Postal Service
03990136
December 17, 1999
Jehue V. McDonald, )
Petitioner, )
) Appeal No. 03990136
v. ) MSPB No. AT-0752-97-0898-I-1
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
On August 16, 1999, petitioner timely filed a petition with the Equal
Employment Opportunity Commission (the Commission) for review of the final
decision of the Merit Systems Protection Board (MSPB) dated August 4,
1999, concerning an allegation of discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The MSPB found that the United States Postal Service (the agency) had
not engaged in discrimination as alleged by petitioner. For the reasons
that follow, the Commission CONCURS with the decision of the MSPB.
ISSUE PRESENTED
The issue is whether the Board's determination that the agency had
not discriminated against petitioner on the basis of his race (Black)
constitutes a correct interpretation of the applicable laws, rules,
regulations, and policy directives, and is supported by the record as
a whole.
BACKGROUND
By letter dated May 23, 1997, petitioner was issued a Notice of
Proposed Removal (NPR). At the time of the issuance of the NPR, he was
a part-time regular Clerk at the Palm Village finance unit in Miami,
Florida. The NPR was requested by S-1, Customer Service Supervisor.
The NPR charged appellant with improper conduct due to his "unauthorized
intercepting, opening, and removing the contents of an outgoing Priority
mail piece." The NPR was issued subsequent to an investigation by the
Postal Inspection Service and S-1. The investigation revealed that the
petitioner was observed opening a Priority mail package by a fellow clerk,
C-1. C-1 reported the incident to S-1, who in turn, notified the Postal
Inspection Service. On June 11, 1997, petitioner and his representative
met with S-2 (Black female), the Officer in Charge of the Hialeah office.
On July 26, 1997, petitioner received the Letter of Decision dated July
11, 1997 removing him from the Postal Service effective July 11, 1997.
The record shows that S-2 did not discuss petitioner's removal with S-1,
that she was near retirement, that she had a higher grade than S-1,
and that she states that race played no role in her decision. As a
preference eligible veteran, petitioner filed a timely appeal of the
agency action with the MSPB.
Petitioner claimed that he was discriminated against based on his race
(Black) when: 1) he was removed, effective July 11, 1997; and 2) S-2
"rubber stamped" S-1's decision to remove him. There is no dispute that
petitioner opened the piece of mail in question. Petitioner also claimed
that he was the victim of a hostile work environment. He claimed that the
investigation of his action was neither fair, nor objective and that he
did not have the right to participate fully in the investigation. He also
cited several incidents which he felt demonstrated the discrimination
and hostile work environment. The first was that S-1 spoke Spanish
around petitioner although petitioner does not speak Spanish, and allowed
petitioner's co-workers to also speak Spanish around him. The second was
that he alone was given Black History Month stamps to sell. As to the
second incident, the record reveals that S-1 gave stamps to employees
based on need, that it was not uncommon for different clerks to have
different stamps within their drawers, and that another clerk, C-2,
was also given Black History Month stamps after she requested them. The
third was that S-1 stated to L-1, a letter carrier, that "there were too
many Blacks in the Postal Service." As to the third incident, both S-1
and L-1 explained that they had a discussion concerning whether there
was a sufficient number of Hispanics in the Postal workplace relative
to their percentage within the geographic community served by the Miami
Post Office. S-1 was the Hispanic Coordinator for the Miami Post Office.
In that capacity, S-1 served as a representative of Hispanic interests
within the Post Office. L-1 testified that the comment in question was
made within the context of that discussion. S-1 claims that he never
said that "there were too many Blacks in the Postal Service," but did
acknowledge that he had the discussion with L-1 concerning the overall
number of Hispanics in the Miami Post Office. The fourth was that C-3
(Hispanic male), another window clerk, also had problems with S-1.
The fifth was that when petitioner went to S-1 with his complaints
about the workplace, S-1 told him that, "he would have to learn to deal
with it." S-1 denies having made that statement. Finally, the sixth
was that petitioner felt that it was unfair that he had to work five
straight hours prior to getting his first break. The record reveals that
the time when breaks were taken was mandated by Post Office Regulations.
The initial decision by the Administrative Judge (AJ), dated December
19, 1997, affirmed the agency's action in removing the petitioner,
and dismissed his discrimination claim. The Opinion and Order by the
Board, dated October 8, 1998, affirmed the initial decision's finding,
except for the ultimate conclusion affirming the agency's removal action,
which they vacated. The Board reopened petitioner's appeal to address his
discrimination claim, and remanded the appeal for hearing and adjudication
of the claim. In a bench decision, dated January 5, 1999, the AJ found
that petitioner failed to prove discrimination. In a final order, dated
August 4, 1999, the Board denied petitioner's petition for review citing a
lack of new evidence or error of law by the AJ. This petition followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to petitioner's claims of discrimination based on race constitutes
a corrective interpretation of any applicable law, rule, regulation or
policy directive and is supported by evidence in the record as a whole.
29 C.F.R. �1614.305(c).
Claim 1
We concur with the Board that petitioner has not proven discrimination
under a "mixed motive" theory with respect to his first claim.
In general, a complainant must present direct evidence to invoke a mixed
motive analysis. See e.g., Wilson v. Firestone Tire and Rubber Co.,
932 F.2d 510, 514 (6th Cir. 1991). Direct evidence may be any written
or verbal policy or statement made by an employer that on its face
demonstrates a bias against a protected group and is linked to the adverse
action complained of. See EEOC Revised Theory, No. N-915.002 (July 14,
1992)(Part III Proving Disparate Treatment Through Direct Evidence).
A link between the evidence of bias and the challenged employment action
can be shown if the biased statements were made by the decision maker
or one who was involved in the decision, at or around the time that
the decision was made, even if the biased remarks were not specifically
related to the particular employment decision at issue. See, e.g., Id.,
(footnote 8) and EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 (11th
Cir. 1990).
We believe that petitioner has failed to present direct evidence of
discrimination. Petitioner cites the following incidents: 1) when
S-1 and others spoke Spanish around petitioner; 2) when S-1 gave Black
History Month stamps to petitioner and C-2; 3) the fact that another
window clerk, who was a Hispanic male, also had problems with S-1; 4)
when petitioner told S-1 that he would have to "learn to deal with"
his workplace environment; 5) when petitioner had to wait five hours
until he could take a break; 6) when S-1 stated that "there were too
many Blacks in the Post Office." After review of the record, we find
that these incidents were not linked to petitioner's removal.
We also concur with the Board that petitioner has not proven
discrimination under a "disparate treatment" theory. 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. 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).
Here, in response to petitioner's claims of discrimination, the agency
presented evidence that he tampered with the mail. We find that the
agency has articulated a legitimate, nondiscriminatory reason for
petitioner's removal. Since the agency articulated such a reason,
the burden returns to the petitioner to demonstrate that the agency's
articulated reason was a pretext for discrimination. We find that
petitioner has failed to do so because he has not shown that he did not
tamper with the mail, an offense whose seriousness was stressed to the
petitioner when he first started working for the Post Office, and has
not shown that anyone in his facility received a lesser penalty for a
similar offense. Therefore, the MSPB's determination that petitioner
failed to establish that he was discriminated against was correct.<1>
Claim 2
We also concur with the MSPB's determination that petitioner has not
proven his second claim of discrimination, that S-2 rubber stamped
S-1's decision to remove him, under a "disparate treatment" theory
of discrimination. Under the law as explained above, the agency has
presented a legitimate, nondiscriminatory reason for its action, namely
S-2's testimony that petitioner tampered with the mail and that his race
was not a factor in her decision to remove him. We agree with the AJ's
characterization of S-2 as a neutral and detached decision maker who
had no motivation to lie, and find, based on the evidence presented,
that petitioner has failed to demonstrate that her decision to have him
removed was a pretext for discrimination.
Hostile Work Environment
The Commission also finds that complainant has not established that he
was harassed on the basis of his race. Harassment of an employee that
would not occur but for the employee's race, color, sex, national origin,
age, disability or religion is unlawful if it is sufficiently patterned
or pervasive. Garretson v. Department of Veterans Affairs, EEOC Appeal
No. 01945351 (April 4, 1996); McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985). The Commission's Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999) identifies two types of such harassment:
(1) harassment that results in a tangible employment action; and (2)
harassment that creates a hostile work environment. Because the issue
was raised by petitioner, we will analyze this matter as an allegation
of harassment that creates a hostile work environment.
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). We do
not find that the incidents identified by complainant were pervasive
or severe enough to significantly and adversely alter the conditions of
his employment.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF RIGHTS - ON APPEAL
RIGHT TO FILE A CIVIL ACTION (W1092)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Dec. 17, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
1 We note that to establish a prima facie case, complainant must only
present evidence which, if unrebutted, would support an inference that the
agency's actions resulted from discrimination. Furnco, 438 U.S. at 576.
It is not necessary for the complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case. O'Connor v. Consolidated Coin
Caterers Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v.
Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September
18, 1996); Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).