0120131512
08-30-2013
Vincent Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Vincent Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131512
Agency No. 1J603001412
DECISION
On March 11, 2013, Complainant filed an appeal from the Agency's February 12, 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 Laborer Custodian at the Agency's facility in Bedford Park, Illinois.
On August 27, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under when:
1. On March 15, 2012, he was given a pre-disciplinary interview;
2. On various dates in May 2012, his requests for approval and copies of his PS Form 3971s were denied;
3. On or around May 16, 2012, he became aware that he was charged .09 units of unscheduled leave for May 9, 2012;
4. On or around May 17, 2012, he became aware that his supervisor manipulated his clock rings and withheld his pay;
5. Beginning on July 2, 2012 and continuing, he has been denied continuation of pay (COP); and
6. Between July 5, 2012 through August 3, 201 he was denied a copy of his completed form CA-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). 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").
As an initial matter, we affirm the Agency's dismissal of claim 5 on procedural grounds for failure to state a claim pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that claim 5 involved the denial of benefits under the Federal Employees' Compensation Act, which is administered by the Department of Labor, OWCP. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise challenges to the cessation of continuation of pay is in the OWCP process. It is inappropriate use the EEO process to collaterally attack the OWCP process. Claim 5 fails to state a claim.
We now turn to the Agency's finding of no discrimination on the remaining claims. 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 must then rebut any initial inference of discrimination by articulating legitimate, non-discriminatory reasons for the disputed actions. 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 reprisal discrimination, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter as detailed below.
In claim 1, Complainant alleges that he was given a pre-disciplinary interview by his supervisor after he clocked in early from lunch. Complainant further indicates that he had not previously had any discussion with his supervisor about cocking in early or about his clock rings. However, Complainant acknowledges that he received no discipline or other adverse action as a result of the pre-disciplinary interview. According to the Agency, Complainant's supervisor noticed a pattern of irregular clock rings for Complainant and discussed the matter with him. As a result of the interview, Complainant's supervisor did not believe that discipline was warranted.
In claim 2, Complainant alleges that his supervisor signed his request for sick leave but refused to finalize it. Complainant further alleges that his supervisor refused to prove Complainant with a copy of his leave request when Complainant asked for one. According to the Agency, Complainant's request for 16 hours of leave for a dentist appointment was approved in accordance with Agency policy. Complainant's supervisor testified also that he did not recall Complainant requesting a finalized copy of his leave request form, but contends that he followed Agency policy in approving Complainant's request for leave for May 16-17, 2012.
Moreover, the record reflects that the Agency approved Complainant's leave requests for May 7 and 8, 2012 as well as his request to leave early on May 3, 2012. Finally, the record reflects that Complainant's supervisor approved Complainant's request for 16 hours of sick leave for dental appointments on May 23-24, 2012.
Complainant challenges his supervisor's decision (claim 3), to charge Complainant .09 hours of annual leave for Complainant's late arrival on May 9, 2012. Complainant contends that he did not realize that he was late that date and asserts that he should have been made aware that he was late and allowed the opportunity to choose which type of leave he wanted to take. The Agency asserts that Complainant was charged .09 hours of unscheduled leave for extending his lunch break and then clocking out early for the day. The Agency further indicates that Complainant was given a choice of leave to be charged and he requested annual leave. The record reflects that Complainant was charged .09 hours of annual leave on May 9, 2012.
Complainant alleges in claim 4 that his supervisor manipulated and disallowed his clock rings for February 2, 2012. Complainant alleges that as a result of his supervisor's conduct, he was not paid for 8 hours of work for February 2, 2012. According to the Agency, Complainant was paid for a full 8 hours of work on February 2, 2012 and for February 5, 2012. The Agency further indicates that on February 6, 2012, Complainant was paid for only 7.91 hours of work as a result of clocking in late for work, taking his regular lunch break and clocking out early. With respect to Complainant's allegation that his supervisor manipulated his clock rings, the Agency indicates that when Complainant clocked in from lunch incorrectly and entered a "begin tour" code instead of a "return from lunch" code, it affected the calculation of Complainant's hours for the day. The Agency asserts that Complainant's supervisor simply corrected Complainant's error.
In claim 6, Complainant alleges that his supervisor failed to provide him with a copy of his CA-1 form documenting his on-the-job injury. According to the Agency, Complainant requested a copy of the form from the Agency's Health and Resource Management Specialist. The record further indicates that Complainant was provided a copy of the CA-1 form via first class mail. While Complainant contends that he should have received a copy from his supervisor, he acknowledges that he received a copy of the form per his request.
Complainant failed to prove, by a preponderance of the evidence, that those reasons articulated by the responsible management officials were pretext for discrimination and/or unlawful retaliation.
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). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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. 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 at 6.
After a review of the record, and considering Complainant's complaint in its entirety, including claim 5 dismissed on procedural grounds, we find that the claims as alleged, do not constitute 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. For the reasons already discussed earlier in this decision, there is no evidence that the Agency was motivated by discriminatory animus. 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 30, 2013
__________________
Date
2
0120131512
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131512