0120131536
08-22-2013
Timothy W. Neese, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Timothy W. Neese,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120131536
Agency No. 4K270005912
DECISION
On March 8, 2013, Complainant filed an appeal from the Agency's February 7, 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 Letter Carrier at the Agency's facility in Gibsonville, North Carolina.
On August 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), and reprisal for prior protected EEO activity when:
1. On April 14 and July 6, 2012, he was required to provide documentation for his absences of April 10-11 and July 5, 2012;
2. On April 19, 2012, the Acting Postmaster made an inappropriate comment to him;
3. On April 26, 2012, his request for his paycheck a day early was denied;
4. On May 2, 2012, he was the only one told he could not talk on the workroom floor;
5. On May 3, 2012, he was the only one not allowed to have personal items at his case;
6. On June 1, 2012, he was falsely accused of not setting the hand brake on his vehicle on May 31, 2012;
7. On June 13, 2012, he was the only one told that any hold mail delivered would be considered a "mis-delivery" and/or delaying the mail; and
8. On July 6, 2012, he was told his paycheck was not received and was denied an advance on his paycheck.
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). In accordance with Complainant's request, 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. The instant appeal followed.
ANALYSIS AND FINDINGS
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").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). 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 Agency may then rebut any initial inference of discrimination by articulating legitimate, non-discriminatory reasons for the actions at issue. 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination, we find that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the disputed actions.
In claim 1, Complainant challenged his supervisor's request that he provide documentation to support his requests for sick leave in April and July 2012. Specifically, Complainant contends that he should not have to provide documentation unless he has shown a pattern of being sick, or if he had been placed on restricted leave of some sort. In response, however, the Agency's indicates that Complainant's supervisor had authority to request documentation supporting Complainant's leave request as provided by Agency policy. According to the Agency, Complainant's supervisor is permitted to request such documentation if she "deems documentation desirable for the protection of the interests of the Postal Service." There is no indication that Complainant was not permitted to take leave, or that he suffered any adverse action as a result of the conduct of Complainant supervisor.
In claim 2, Complainant alleges that his supervisor made an inappropriate comment to him when she said in front of Complainant's co-worker that she (supervisor) hated working in the office since she began working with Complainant. Complainant contends that it was inappropriate for his supervisor to speak that way about an employee under her supervision.
Complainant also challenges his supervises refusal to provide him with his paycheck one day early. Specifically, Complainant indicates that Complainant asked his supervisor for his paycheck because he would be away from work on payday. Complainant's supervisor advised Complainant that she only gave out paychecks on payday. According to Agency policy, a supervisor may give a paycheck to an employee at the end of his or her duty hours on Thursday when the employee will otherwise be unavailable on payday Friday. The Agency contends, however, that the decision is within the discretion of the supervisor.
Complainant claims in claim 4 that on May 2, 2012, he was told that there would be no talking at his station on the workroom floor. Complainant challenges the actions of his supervisor and contends that there are no rules concerning talking on the workroom floor. The Agency indicates, however, that Complainant's supervisor made an announcement to all employees including Complainant to perform their work "quietly and diligently" as provided by Agency policy. The Agency also advises that the City Delivery Carriers Duties and Responsibilities Handbook provides that employees are to "refrain from loud talking and the use of profane language." According to the Agency, Complainant has a loud, booming voice which is amplified when he shouts across the workroom floor. While Complainant's supervisor contends that she did not single Complainant out for talking loud, she believes that he contributes significantly to the overall noise level on the workroom floor.
In claim 5, Complainant alleges that his supervisor made him take his personal heater to his vehicle, and advised him that he could not have any personal items at his work station. Complainant contends that there is no Agency policy against such items and alleges that other employees were permitted to have heaters, fans and radios at their personal work stations. The Agency contends, however, that standard established by the Occupational Safety and Health Administration (OSHA), prohibits personal items such as heaters at work stations unless they are plugged into an appropriate outlet. According to the Agency, Complainant's personal heater was not plugged into an approved outlet at his workstation.
Concerning claim 6, regarding Complainant's alleged failure to secure the hand brake in his vehicle, the Agency admits that following an investigation into the matter, it was discovered that an acting supervisor moved the vehicle Complainant had been assigned in order for the grass to be moved. The acting supervisor failed to engage the hand brake. No discipline was issued to Complainant for the incident. Complainant alleges also that in claim 7, he was the only carrier told that delivering mail held at the post office would be counted as a "mis-delivery." Specifically, Complainant alleges that his supervisor allowed a colleague to deliver mail that customers had requested to be held at the post office, but told Complainant not do deliver the mail. According to Agency policy, when a customer requests that mail is to be held at the post office, it is to remain at the postal facility until a customer comes to pick it up or until the customer request that delivery start again. According to Complainant's supervisor, Complainant was simply advised to carry out Agency policy. Complainant's supervisor testified that she has no knowledge of any other letter carrier being allowed to deliver held mail.
In claim 8, Complainant alleged that the Agency failed to give him an advance on his pay. The record indicates that on July 6, 2012, 5 employee paychecks including Complainant's did not arrive at the postal facility for distribution. All employees whose paychecks were missing received their paychecks on Saturday, July 7, 2012 in accordance with Agency policy.
After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management were pretext for discrimination.
To the extent that Complainant alleges that the Agency's conduct constituted discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). After a review of the record, we find that Complainant has failed to show that he was subjected to discriminatory harassment. Complainant did not prove that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that he also failed to prove that the Agency's actions were unlawfully motivated by his protected classes. Accordingly, Complainant has not shown that he was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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 22, 2013
__________________
Date
2
0120131536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131536