0120090863
04-02-2009
Thomas McCabe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas McCabe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090863
Agency No. 4H-300-0012-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 12, 2008 final decision 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
During the period at issue, complainant was employed as a Sales and
Service Associate, PS-06, at the agency's Norcross Post Office in
Norcross, Georgia.
On January 24, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to harassment and a
hostile work environment on the bases of perceived disability (chronic
migraine headaches) and in reprisal for prior EEO activity when:
since October 2007 and continuing, he was denied overtime.
At the conclusion of investigation, complainant was provided with a copy
of the report of the 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).
In its November 12, 2008 final decision, the agency dismissed the instant
formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim finding that complainant was not aggrieved.1
The agency then addressed the instant complaint on the merits. The agency
found that complainant did not establish a prima facie case of disability
and reprisal discrimination.2 The agency further found that assuming,
for the sake of argument, complainant established a prima facie case of
disability and reprisal discrimination, management articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
With respect to complainant's harassment claim, the agency found
that the evidence in the record did not establish that complainant
was subjected to harassment based on disability and prior protected
activity. Specifically, the agency found that the alleged harassment
was insufficiently severe or pervasive so as to create a hostile work
environment.
Complainant's first-level supervisor (S1) denied complainant's claim that
since October 2007 and continuing, he has been denied overtime. S1 stated
that complainant "has not been denied overtime since October 2007.
He has been provided overtime based on the guidelines set forth in the
National Agreement. He has limited his opportunity to work overtime due
to his not being scheme trained." S1 stated that overtime is assigned
"based upon availability and the employees skills, primary assignment
and knowledge." S1 further stated that a review of complainant's clock
rings "for the period in question show he has worked overtime every week.
Most weeks 10 or more hours." Specifically, S1 stated that since October
2007, complainant has worked 303.92 hours of overtime. S1 also stated
that complainant is on the overtime desired list (OTDL) "when workload
warrants overtime Clerks from the list are required to work when they
are available."
The 204-B Supervisor (S2) stated that during the relevant time he was
complainant's supervisor when he worked overtime. S2 stated that when
complainant specifically requested to work overtime, S2 would grant
complainant's requests "if we had overtime slots available. If not,
then I would deny his requests." S2 further stated "our office had
been using too many hours, so we had to decrease the number of hours at
our office. This meant that the number of overtime hours we granted
had to be reduced. Therefore, if we were not allowed to use overtime
during a certain period, then he would not have been granted overtime."
S2 stated "I am not aware of the exact number of hours he has worked
since October 2007. However, I do know that out of the Regular Window
Clerks he has worked the most amount of overtime. [Complainant] has
not been singled out when overtime is denied."
With respect to complainant's assertion that S2 told him not to come in
for overtime on the Clerk Distribution side because S1 called him and
told him to take away his overtime, S2 denied this assertion. S2 stated
"I told [complainant] not to come in on the Clerk side because I was
informed that overtime was being cut. [S1] informed me that overtime was
being cut for all employees, per [the named Postmaster's] instructions.
[S1] did not specifically say take away [complainant's] overtime."
The Postmaster (PM) stated that he had no involvement concerning
complainant's request to work overtime. The PM stated, however, "due
to budget cuts we have been mandated that our overtime hours need to
be cut. Therefore, there has been a straight across-the-board reduction
in overtime hours. [Complainant] was not singled out in any way regarding
overtime hours."
Disparate Treatment
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 agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Harassment
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 severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.3
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
April 2, 2009
__________________
Date
1 Complainant filed a grievance concerning denial of overtime on four
specific dates in October 2007, and the grievance was resolved for
18 hours of make-up overtime during the months of November and December
2007.
2 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
3 Because we affirm the agency's finding of no discrimination on the
merits for the reason stated herein, we find it unnecessary to address
the disposition of the complaint on procedural grounds (i.e. failure to
state a claim).
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0120090863
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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