0120131938
08-23-2013
Scott A. Eades, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Scott A. Eades,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120131938
Hearing No. 450-2012-00269X
Agency No. 4G-752-0002-12
DECISION
On March 26, 2013, Complainant filed an appeal from the Agency's February 21, 2013, 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. 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 City Carrier at the Agency's Post Office facility in Longview, Texas.
On December 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Caucasian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On September 12, 2011, Complainant was issued a Letter of Warning dated September 7, 2011;
2. On September 20, 2011, Complainant was notified that he was being sent for a Psychological Fitness for Duty (FFD) Examination;
3. On September 21, 2011, Complainant's leave for September 6 through September 9, 2011 was changed to Absent Without Leave (AWOL);
4. On September 27, 2011, Complainant was issued a Letter of Warning, dated September 26, 2011; and
5. On an unspecified date, Complainant was issued a Seven (7) Day Suspension; and
On January 7, 2012, Complainant contacted the EEO Counselor regarding additional subsequent acts of alleged discrimination. As such, the Agency amended his complaint to include the following events raised in support of Complainant's claim that he was subjected to harassment based on reprisal (prior and/or current EEO activity), when:
6. On November 19, 2011, and December 15, 2011, Management allowed two (2) different employees to verbally assault and threaten Complainant;
7. On an unknown date, Complainant was give a pre-disciplinary interview;
8. Complainant requested three (3) times to have another employee stop touching him and invading his personal space;
9. Complainant was given a Letter of Warning dated December 12, 2011 and
10. Complainant's Office in Charge (OIC) was mocking and joking at Complainant's expense; and
On January 30, 2012, when Complainant contacted the EEO Counselor regarding an additional event, the Agency amended the complaint to include Complainant's claim of harassment based on race (Caucasian) and reprisal (prior and/or current EEO activity), when:
11. On January 19, 2012, Complainant was placed on Emergency Placement in a non-pay status; and
Finally, on March 14, 2012, Complainant amended his complaint for the third time to include his assertion that he was subjected to harassment based on race, color (White), and reprisal when:
12. On or about March 12, 2012, Complainant was issued a Fourteen (14) Day Suspension dated March 6, 2012.
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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed. On appeal, Complainant claimed that he had been subjected to harassment and discrimination at the hands of management. The Agency requests that we affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment
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).
In claims (1), (2), (3), (4), (5), (9), (11), and (12), Complainant alleged events in which he asserted he was subjected to disparate treatment based on his prior EEO activity, race and/or color. Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions.
As to claim (1), the OIC averred that Complainant was issued the letter of warning on September 7, 2011, for improper conduct. The OIC noted that a sign had been posted with a misspelling of the word "Manual." It was spelled "Manuel." Complainant corrected the error and noted next to it that it was "manual;" not the name of a Hispanic co-worker. Other employees found the note offensive. Further, on August 29, 2011, Complainant became loud and disruptive when the OIC spoke to him about his assigned tour time. Based on Complainant's conduct, the OIC issued Complainant the Letter of Warning.
In claim (2), Complainant argued that he was improperly sent for a Fitness for Duty Examination. The OIC indicated that Complainant exhibited erratic and disruptive behavior including mood swings; argumentative behavior with management and the Union; expressed racist remarks; ridiculed co-workers; and had issues with personal hygiene, work efficiency and attendance. As such, the OIC sent Complainant for the Fitness for Duty Examination.
Complainant was charged with AWOL as raised in claim (3) because he was asked to bring in documentation to support his absence. The OIC determined that the documentation was unacceptable and was asked to bring in appropriate documentation by September 19, 2011. When Complainant did provide the requested documentation, the OIC charged Complainant with AWOL. Subsequently, on September 27, 2011, Complainant was issued another Letter of Warning as asserted in claim (4). The OIC averred that Complainant failed to follow instructions, specifically related to his repeated failure to provide medical documentation to support his leave request.
As to claim (5), Complainant indicated that he was issued a seven (7) day suspension on October 19, 2011. The OIC charged Complainant with improper conduct. He noted that Complainant interviewed an employee and was to complete a witness statement. The OIC stated that Complainant altered the statement and forwarded it to the next step of the grievance procedure without providing a copy to management. The witness noted that the statement was not correct. As such, the OIC issued Complainant the suspension.
In claim (9), the OIC stated that Complainant was issued a seven (7) day suspension on December 12, 2011, not a Letter of Warning as stated in the complaint. The OIC indicated that Complainant was suspended for improper conduct for he took confidential copies of an investigation as his role as a union official; then provided employees with copies of the statements. The OIC noted that Complainant did not cooperate with the Agency's investigation into the matter and that they found that Complainant's actions had the appearance of intimidating, bulling and harassing others.
On January 19, 2012, Complainant was placed on Emergency Placement on off-duty status when Complainant became angry with the Supervisor when she informed Complainant that she would be accompanying him on his route. The OIC indicated that Complainant did not follow the Supervisor's instruction, interrupted her and walked away. He then called "911" and waited by the back dock for the police. Because of Complainant's actions, the OIC placed Complainant on Emergency Placement as asserted in claim (11).
Finally, the OIC indicated that Complainant was suspended for 14 days on March 6, 2012, as alleged in claim (12) due to Complainant's actions which created a hostile work environment. Specifically, the Supervisor noted that on February 25, 2012, Complainant stated on the workroom floor to another employee following being given their daily instructions, "You're just another hard working white boy". The OIC felt that this was a racial slur and was highly offensive. Based on Complainant's prior disciplinary record, the Supervisor issued the 14 day suspension.
Upon review, we determine that the Agency provided legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to show that the reasons were pretext for discrimination. Complainant denied that he engaged in racially charged actions and that management falsely accused him of improper conduct. We find that Complainant's assertions are not sufficient to establish that the Agency's reasons were pretext for discrimination.
Harassment
It is well-settled that harassment based on an individual's race, color, and prior EEO activity 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 and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on race, color and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her 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 of the record, we find that Complainant has not shown that the alleged actions constituted a hostile work environment based on his race, color and/or prior EEO activity.
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 decision finding no discrimination.
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
August 23, 2013
__________________
Date
2
0120131938
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131938