0120103109
12-16-2010
Timothy E. Powell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Timothy E. Powell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120103109
Hearing No. 532-2010-00015X
Agency No. 1C-441-0043-09
DECISION
On July 6, 2010, Complainant filed a timely appeal from the Agency's
June 4, 2010, 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 accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision in part, and VACATES it in part.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a full-time Mail Handler Equipment Operator at the Agency's Cleveland
Processing & Distribution Center facility in Cleveland, OH.
He filed an EEO complaint alleging that the Agency discriminated
against him based on his race (black) and reprisal for prior protected
EEO activity under Title VII when starting in September 2008 he was
subjected to a hostile work environment, with the main dates being denial
of overtime on April 10, 2009, and May 7, 2009.1
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 requested a hearing. On April 27, 2010, the AJ denied
the request, writing that Complainant was ordered to show cause on
why he failed to respond to the Agency's discovery requests or submit
his discovery responses no later than April 21, 2010, and was notified
that failure to do so would result in the dismissal of his request for
a hearing. The AJ remanded the complaint to the Agency, which issued
a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision
concluded that Complainant's claim of harassment was not sufficiently
severe or pervasive to constitute a hostile work environment, that the
denial of overtime prior to March 23, 2009, regarded discrete acts which
were not timely raised with the EEO counselor, and Complainant failed
to prove that the denial of overtime on April 10, 2009 and May 7, 2009,
was discriminatory.
CONTENTIONS ON APPEAL
Complainant contends that in explaining its reason for denying him
overtime on April 10, 2009, the Agency identified the wrong person
who was responsible, and he was senior to another Mail Handler who got
overtime that day. He argues that his hearing was denied based on the
assumption that the Agency was giving true facts.
ANALYSIS AND FINDINGS
When a complainant or an agency fails without good cause shown to respond
fully and in a timely fashion to an order of an AJ, the AJ may take
appropriate action. 29 C.F.R. � 1614.109(f)(3)(v).
Complainant does not contend that in reply to the AJ's order, he responded
to the Agency's discovery requests or attempted to show cause why he
did not do so. Accordingly, the AJ's decision to dismiss Complainant's
hearing request was appropriate.
Complainant alleged that he was harassed when he was denied overtime
starting in September 2008. He contended that from September 2008 to
March 2009, the Agency scheduled part-time flexible Mail Handler (M.M.,
white) 48 hours a week, giving him a day of overtime, and did the same
for all or part of this period for full-time Mail Handler Equipment
Operator (A.R. white), full-time Mail Handler Equipment Operator
(A.L., white), full-time Mail Handler (S.T., white), and full-time Mail
Handler D.Z. (white), but only scheduled Complainant 40 hours a week.
Complainant contended that white employees were scheduled for overtime
ahead of him. He contended that the Agency would schedule overtime
on Thursdays so white employee E.H. would get it six days a week, and
scheduled overtime on Sundays, where only white employees regularly got
it, even though mail volume was low, so they would get six days of work
a week. Complainant contended that Manager of Distribution Operations
(MDO) V.D. and Associate Supervisor M.M. were responsible for denying
him overtime. According to the counselor's report, Complainant said
the eight hour overtime days stopped for everyone in April 2009.
MDO V.D. denied that he was involved in scheduling overtime. He stated
that the MDO instructs on the number of employees needed, and the
unit supervisor than schedules the necessary overtime. There is more
than one MDO, and MDO V.D. did not identify to whom he was referring.
The Associate Supervisor stated that she was not aware of flexible Mail
Handler M.M. and Mail Handler Equipment Operator A.R. getting a full day
of overtime one day a week. She generally stated that Complainant was
denied overtime when Mail Handlers were available to do work on straight
time, and that overtime is given in accordance with the collective
bargaining agreement (CBA).
To establish a claim of harassment complainant must show that he:
(1) belongs to a statutorily protected class; (2) 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 his statutorily protected class; (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;
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). Further,
the incidents must have been "sufficiently severe or 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).
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 at 6
(Mar. 8, 1994).
Complainant suggested that overtime was scheduled on days that
more white employees worked so they would be more likely to get it.
While MDO V.D. denied that he scheduled overtime, he acknowledged that
MDO(s) instruct unit supervisors on the number of employees needed.
The Agency did not investigate what factors went into choosing how many
employees were needed on Thursdays and Sundays, or who specifically
made these decisions. Applying the above legal framework, however,
we find that the alleged denial of overtime did not rise to the level
of actionable harassment because it did not unreasonably interfere with
Complainant's work environment and/or create an intimidating, hostile,
or offensive work environment. Accordingly, the Agency's decision that
Complainant was not harassed is AFFIRMED.
Complainant, who initiated EEO contact on May 7, 2009, on appeal does
not contest the Agency's determination that the denial of overtime prior
to March 23, 2009, as a claim independent of harassment, is untimely.
Accordingly, this matter is not before us.2
The only specific dates of denial of overtime before us are April 10,
2009, and May 7, 2009. Complainant stated that tow motor operators
in the automation unit were expected to work until the job was done,
regardless of whether they went passed their schedule or had been
scheduled for overtime, and he was the only one questioned about it.
Report of Investigation (ROI), Affid. A, at 5. He contended that
four white employees, who he claimed operated tow motors, were never
questioned, like him, when they worked past their departure times, and got
overtime. Id. All four have been referenced above. Complainant conceded
that some blacks receive overtime, stating this occurred when they were
senior to the white employees and had the same schedule. Id. at 12.
Complainant contended that on April 10, 2009, 30 minutes of overtime pay
was taken from him, while full-time Mail Handler D.Z. (white), whom he
claimed had less seniority than him, was allowed to keep his overtime.
Complainant contended that on May 7, 2009, white employee E.H., whom
he claimed had less seniority than him, received overtime hours, and he
was not permitted to work overtime.
Under the CBA, overtime work is scheduled among qualified full-time
regular employees doing similar work in the work location where employees
regularly work. The CBA provides that when the need for overtime arises,
full-time regular employees with necessary skills who have placed their
names on the overtime desired list will be selected in order of their
seniority on a rotating basis.
In his affidavit, MDO V.D. stated he was unaware of the circumstances
surrounding the denial of overtime on April 10, 2009, and May 7, 2009,
that he did not schedule it, and it was scheduled by MDO D.T., who was
in charge of the relevant unit. He indicated overtime is scheduled
in accordance with the CBA. According to the counselor's report,
MDO D.T. said that supervisor M.D. in the automation unit asked Mail
Handler D.Z. to work 30 minutes of overtime to complete a dispatch, and
Complainant was not needed when his tour ended at 7:30 AM. MDO D.T. added
that because Mail Handler D.Z. got 30 minutes of overtime, Complainant
took it upon himself to stay an extra 30 minutes, and he had not been
instructed to work beyond his tour. Complainant countered that on April
10, 2009, MDO D.T. was in charge of another area, and did not supervise
him or Mail Handler D.Z., who were both working in the automation unit.
Complainant contended that they were both supervised by Associate
Supervisor M.M. and MDO V.D. that day, but also stated all the Mail
Handlers were under his supervisor, J.S.
According to the counselor's report, MDO V.D. stated MDO Y.R. was
in charge of the relevant unit on May 7, 2009, and the supervisor who
scheduled the overtime was J.S., Complainant's supervisor. He indicated
that employee E.H. and employee C.W. (African-American) received overtime.
Complainant confirmed the latter got overtime.3 According to the
counselor's report, MDO V.D. stated that Associate Supervisor M.M. was
tasked with monitoring unauthorized overtime by all the automation tow
motor operators, and this was not the first time Complainant stayed
on unauthorized overtime, which he has been instructed not to do.
Associate Supervisor MM indicated that Complainant was working past his
tour on May 7, 2009, that she called various management officials and
they all said they did not authorize overtime, and when she confronted
Complainant and asked if anyone authorized him to stay on overtime,
he became agitated and a dispute ensued.
After reviewing the record, we find there is insufficient information
therein to resolve the claim of whether Complainant was discriminated
against when he was denied overtime on April 10, 2009 and May 7, 2009.
He initially contended that MDO V.D. and Associate Supervisor M.M. were
responsible for the discrimination, and the investigator focused on their
involvement. MDO V.D. stated that he was not involved in the scheduling,
and pointed to others who he stated were on May 7, 2009. Associate
Supervisor M.M. did not explain the circumstances of the denial on April
10, 2009, and her response indicated she was not involved in assigning
the overtime on May 7, 2009. She was at the disadvantage because she
did not have access to records when the investigator questioned her.
Rather than follow up and attempt to confirm who was responsible for
assigning overtime on April 10, 2009 and May 7, 2009, and ask them
why the comparative employees received overtime and not Complainant,
the investigator stopped the inquiry. The investigator should also
get more information on the comparative employees Mail Handler D.Z, and
employees E.H. and C.W. The record contains the TACS Daily Hours Report
(time records indicating how much overtime was earned) for Complainant
and Mail Hander D.Z. for pay periods 2009-08-2 through 2009-12-2 (April
4, 2009 through June 5, 2009), but not for employees E.H. and C.W.
The record should contain the TACS Daily Hours Report for all four of the
above individuals for pay periods 2009-08-1 through 2009-12-2. For the
above four individuals, the investigator should get documentation on
whether they were on the overtime desired list in April and May 2009,
and information and documentation on whether under the CBA portion
regarding overtime if they were qualified full-time regular employees
doing similar work in the work location they regularly worked, and had
the necessary skills to perform the overtime and seniority on a rotating
bases was applied for April and May 2009, but especially for April 10,
2009, and May 7, 2009. The investigator should also get information
on whether the comparative employees had prior EEO activity, and if so,
the decision makers were aware of this. The investigator also did not
inquire whether comparative tow motor operators were permitted to get
overtime by simply working past their scheduled departures times, as
Complainant claims.
We are disinclined to find at this point that the Agency has not
articulated a legitimate, nondiscriminatory reason for its actions on
April 10, 2009, and May 7, 2009, albeit the Agency has given little
specific information yet on this. We note that a Notification of
Personnel Action for Mail Handler D.Z. does not indicate he is a tow motor
operator, while Complainant's does, raising a question at this point
on whether they are similarly situated. And there are inconsistencies
in the record on who was responsible for assigning overtime to the
comparative employees. The Agency shall comply with the Order below.
CONCLUSION
The Agency's decision finding that Complainant was not harassed is
AFFIRMED. The Agency's decision finding Complainant was not discriminated
based on his race and reprisal when he was denied overtime on April 10,
2009, and May 7, 2009, is VACATED, and this claim is remanded to the
Agency in accordance with the Order below. There are no remaining live
claims in the complaint.
ORDER
The agency shall conduct a supplemental investigation on whether
Complainant was discriminated against based on his race (black) and
reprisal for prior EEO activity when he was denied overtime on April 7,
2009, and May 7, 2009. The investigator shall follow leads to identify
who was responsible for denying Complainant overtime on those dates, who
granted overtime on April 10, 2009, to comparative employee Mail Handler
D.Z., and who granted overtime on May 7, 2009 to comparative employees
E.H. and C.W. on May 7, 2009. The investigator shall ask the decision
maker(s) to explain why the comparative employees were given overtime,
and not Complainant. If the CBA4 was a factor, the decision maker(s)
shall be asked to explain. The investigator shall obtain and provide
to the decision maker(s) copies of any documents necessary to refresh
their recollection.
To the extent this documentation is not already in the record, the
Investigator shall secure the TACS Daily Hours Report for Complainant and
the above three comparative employees for pay periods 2009-08-1 through
2009-12-2, and whether they were on the overtime desired list during
this period. The investigator shall obtain information and documentation
on whether under the CBA portion regarding overtime Complainant and the
three comparative employees were qualified full-time regular employees
doing similar work in the work location they regularly worked, and
had the necessary skills to perform the overtime, and seniority on a
rotating bases was applied for April and May 2009, but especially for
April 10, 2009, and May 7, 2009, and obtain information on the job titles
for employees E.H. and C.W. The investigator shall get information
on whether the above three comparative employees engaged in prior
EEO activity and the relevant decision maker(s) were aware of it, and
whether the decision maker(s) were aware of Complainant's EEO activity.
The investigator shall also obtain information on whether white tow motor
operators in Complainant's unit are permitted to work past their scheduled
departure times without being assigned overtime, earning overtime, and
whether the above three comparative employees are tow motor operators.
The investigator shall solicit other information s/he deems relevant
to making a determination on discrimination and reprisal. As part of
the supplemental investigation, the Agency shall give Complainant an
opportunity to give input.
The agency shall then give Complainant a copy of the supplemental
investigation, and issue a final agency decision on whether there was
discrimination based on race and/or reprisal. The agency shall complete
all these actions within 120 calendar days after this decision becomes
final.
A copy of the letter transmitting a copy of the supplemental investigation
to complainant, and the new final agency decision must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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
December 16, 2010
__________________
Date
1 On May 7, 2009, Complainant got into a dispute about being denied
overtime that day, allegedly got loud and belligerent, and was placed
on emergency off-duty status without pay. His complaint included a
claim about the emergency off-duty status, which was investigated.
In its final decision, the Agency explained that because the emergency
off-duty status claim was mixed, meaning appealable to the Merit Systems
Protection Board (MSPB), it was assigned a different complaint number
and a separate final agency decision on the matter was forthcoming.
2 An aggrieved person must seek EEO counseling within 45 days of the
date of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2).
3 Complainant indicated that he was denied two hours of overtime.
4 It is located in the ROI, Exh. 17.
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0120103109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103109