0120070090
01-12-2009
Robert O. Ball, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert O. Ball,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070090
Agency No. 1E-971-0011-06
DECISION
On October 5, 2006, complainant filed an appeal from the agency's
September 7, 2006 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
At the time of events giving rise to this complaint, complainant worked
as a Casual Clerk at the agency's work facility in Portland, Oregon.
On April 13, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (Caucasian), national origin
(Caucasian), sex (male), age (52), and in reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 and
the Age Discrimination in Employment Act of 1967 when:
1. On April 14, 2005, the Lead Personnel Services Specialist singled
complainant out by asking him for comments during a pre-hire orientation.
2. In July 2005, complainant received a letter from the Acting Manager
stating that he would not be hired at that time.
3. From December 10, 2005, through December 15, 2005, complainant was
subjected to hostile comments from female coworkers.
4. In December 2005, the Acting Supervisor refused to assign complainant
to the case he had been working in prior to his lunch break.
5. On December 29, 2005, at the end of his casual appointment,
complainant's evaluation form was marked "do not rehire".
On April 21, 2006, the agency accepted claims (3) and (5) for
investigation. Claims (1) and (2) were dismissed pursuant to 29
C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The agency determined that complainant's EEO contact of January 4, 2006
was 157 days after the most recent incident alleged in these claims,
and therefore after the expiration of the 45-day limitation period.
The agency dismissed claim (4) pursuant to 29 C.F.R. � 1614.107(a)(1)
on the grounds of failure to state a claim. The agency determined that
complainant failed to show how being required to work in a different
case from the one he was working in before lunch resulted in a direct,
personal deprivation to him.
At conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). The agency issued
a final decision wherein it determined that complainant failed to prove
that he was subjected to discrimination as alleged.
In its final decision, the agency determined complainant failed to state
a claim with regard to claim (3). The agency stated that complainant
alleged that one female coworker stated to him to "stay away from me,
you make me nervous". The agency noted that the Supervisor, Distribution
Operations and complainant's Acting Supervisor stated that complainant did
not make them aware of female coworkers making hostile comments toward
him. The agency determined that this coworker's comment to complainant
was not mentioned or used as part of complainant's final evaluation.
The agency also analyzed claim (3) on the merits. Assuming arguendo,
with respect to claim (3) that complainant had established a prima facie
case of race, sex, national origin, reprisal and age discrimination, the
agency stated that it articulated legitimate, nondiscriminatory reasons
for its actions. In terms of a harassment claim, the agency stated that
complainant identified only the incident of December 15, 2005, and that
this incident by itself was not sufficient to establish harassment.
With regard to claim (5), the agency stated that complainant was evaluated
as "do not rehire" for several reasons. According to the agency,
complainant was trained on three occasions but never caught on to the
job requirements. Additionally, the agency stated that three employees
found complainant to be strange and reported they were afraid of him.
Complainant was reported as having a poor attitude because he did not
want to move around as needed and his work performance was characterized
as poor. The agency maintained that complainant became angry when he was
corrected about several mistakes he made while casing mail. Coworkers
complained that complainant was dressed in dirty clothing and talked to
himself angrily through his teeth and swore. The agency determined that
complainant offered no more than speculation and conclusory allegations
as to why management acted as it did. The agency stated that complainant
failed to submit credible evidence that the reasons articulated by the
agency were not the true reasons for its actions.
On appeal, complainant contends that management believed anything women
said about him without ever getting his side of the story. Complainant
states that he was misperceived as having a bad attitude when much of
his reaction was due to severe headaches. Complainant argues that sex
and age discrimination are evident given that most of the individuals
marked eligible for rehire were women, people under 40 years of age and
minorities.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a claim of harassment, complainant must show that: (1) she
is a member of the statutorily protected class; (2) she 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. United States 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).
Initially, we note that complainant on appeal does not address the claims
that were dismissed on procedural grounds. Upon review, we find that
these claims were dismissed on appropriate grounds. Accordingly the
agency's dismissal of claims (1), (2) and (4) was proper and is AFFIRMED.
Complainant alleges that he was subjected to a hostile work environment
and harassment when from December 10, 2005, to December 15, 2005, he was
subjected to hostile comments from female coworkers. With regard to claim
(3), the record indicates that complainant identified only one specific
hostile comment allegedly directed toward him during the relevant period.
Complainant has not established that he informed the agency of the
relevant incident. Moreover, the incident at issue lacks sufficient
severity or pervasiveness to constitute harassment. Accordingly, the
agency's final decision finding no discrimination with regard to claim
(3) is AFFIRMED.
As for claim (5), the record reflects that complainant was marked "do
not rehire" based on several concerns involving his job performance and
conduct. These matters constituted legitimate, nondiscriminatory reasons
for the agency's decision not to rehire complainant. Specifically,
they included complainant's inability to develop competence in the job
requirements despite having been trained on three occasions, a poor
attitude because he did not want to move around as needed, comments
from three employees that they found him to be strange and that they
were afraid of him, and that he became angry when he was corrected about
several mistakes he made while casing mail.
Complainant attempts to establish pretext by arguing that the agency
only listened to complaining coworkers and did not elicit his side of
the story. Complainant further argues that a disproportionate number of
the people who were rehired were women, minorities and those under the
age of 40. We find that these contentions presented by complainant do not
credibly challenge the agency's reasons for not rehiring him. The record
is replete with instances of performance and conduct deficiencies on the
part of complainant that justify the agency's decision not to rehire him.
Therefore, we find that complainant has failed to establish that he was
discriminated against on the alleged bases.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 12, 2009
__________________
Date
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120070090