0120151699
07-20-2017
Wayne C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wayne C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120151699
Hearing No. 510-2015-00059X
Agency No. 4G335017614
DECISION
The Commission accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's March 25, 2015 final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales / Service Distribution Associate at the Agency's Merritt Island facility in Merritt Island, Florida.
On September 15, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), disability (Back/Neck/Stress/Anxiety), and reprisal for prior and current protected EEO activity under Title VII when:
1. On August 1, 2014, his supervisor said to him, "if your punk ass white piece of shit thinks you're going to get away with it;" and
2. On August 8, 2014, he was placed on Emergency Placement in Off-Duty Status.
The Agency accepted the above-referenced claims 1 and 2 for investigation. The complaint included two other allegations which were dismissed for failure to state a claim. Complainant does not challenge that dismissal in this appeal. Complainant did not provide an affidavit in support of his complaint.
The pertinent record reveals the following facts.
In Complainant's complaint, he identified himself as a Caucasian male. There is no evidence in the record that Complainant was limited in any major life activities. He had no restrictions or work limitations due to any of his alleged medical conditions. He has known prior EEO activity, in which he named the Postmaster as a responsible management official.
He worked as a Sales Service Distribution Associate. He reported to the Supervisor Customer Services (RMO1) (Bi-racial, male, no prior EEO activity, no disability). His second level supervisor was the Postmaster (Caucasian female, no prior EEO activity, no disability) ("RMO2"). His supervisors were aware of his sex, color, and prior EEO activity, but both denied knowing of any disability.
Claim 1 - Alleged statement
On August 1, 2014, Complainant was the assigned clerk on duty to staff the customer service window. During his routine walk through the retail window section, Complainant's supervisor (RMO1) observed that the customer service window to which Complainant was assigned was unattended. RMO1 paged Complainant over the intercom. Complainant yelled from the back work area for the supervisor to stop paging him. Complainant told RMO1 that Complainant was doing his job. When Complainant returned, RMO1 asked Complainant why he left the window unattended and reminded Complainant that RMO1 was the boss and that Complainant should notify RMO1 of his whereabouts. Complainant told the supervisor that he had just gone to get the hold mail. Complainant stated RMO1 then stated that the Postmaster had warned him about Complainant. Complainant stated that RMO1 said that "You're not going to pull [this] with me..." and allegedly made the following comment: "if your punk ass white piece of shit thinks you are going to get away with [this]." Complainant then told RMO1 to get out of his face.
Claim 2 - Placement on Off-Duty Status
On August 8, 2014, an investigative interview was conducted with Complainant and RMO1. A union official also attended. Towards the end of the interview, RMO1 asked Complainant if he had any problems. Complainant interrupted the RMO1 and stated "You're a liar and you have a problem." After he was asked to calm down, Complainant stated, "No, this interview is over." He stood up, grabbed his chair by the top portion and proceeded to shove the chair which hit the table. RMO1 accused Complainant of throwing a chair and called the sheriff's office on him. Complainant said that he slid his chair. He denied throwing the chair. Due to Complainant's behavior, RMO instructed Complainant to clock out. Complainant did not leave immediately, even after being instructed to leave by the Postmaster, RMO2.
The Postmaster (RMO2) issued Complainant a Letter of Emergency Placement, dated August 11, 2014. The Letter of Emergency Placement indicated that Complainant was placed on emergency placement effective August 8, 2014, due to management's concern that retaining him on duty might result in harm to him or others. The Time and Attendance Collection System (TACS) Employee Everything Report indicates that Complainant was on Leave Without Pay (LWOP) from August 9, 2014 through August 21, 2014, with the exception of 1.75 hours of time working (union steward time on August 19, 2014.
At the conclusion of the investigation into the accepted allegations, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a hearing, but subsequently withdrew his request for a hearing and requested a FAD. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency found that Complainant failed to establish a prima facie case of discrimination on any of the alleged bases because he had not shown any similarly situated comparators.
Next, the Agency assumed that if a prima facie were shown, the Agency found that it articulated a legitimate reason for the alleged actions: Complainant did not perform the customer service function in a manner that met his supervisor's expectations. With regard to claim 2, the Agency perceived Complainant was a threat and management instructed him to leave after he engaged in behavior that was deemed violent. The Agency found that Complainant failed to prove that the Agency acted on the basis of discriminatory animus.
This appeal followed.
On appeal, Complainant suggests an adverse inference should be drawn against the Agency due to the Agency's failure to provide its Final Agency Decision in a timely manner. Complainant disputes the Agency's assertion that it took 39 days for the Agency to receive the AJ's order, dismissing the hearing request and remanding the matter back for a decision. Complainant notes that if he had missed time limits at any step of the process, he would have lost his recourse to the EEO process.
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).
We review this matter de novo and through the lens of the federal sector mandate of Title VII's Section 717 and the Rehabilitation Act.
For purposes of this decision, we will assume that Complainant is a person with a disability.
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).
We disagree with the Agency's conclusion that Complainant failed to establish a prima facie case of race discrimination and/or unlawful retaliation for prior EEO activity. The alleged statement references race on its face and states a per se Title VII claim. If it was stated as alleged by a supervisor, it would be enough to raise an inference of discrimination because it was discriminatory on its face and included a veiled threat. If the allegation was proven true, the Agency could be liable. We note that Complainant also alleged a hostile environment claim.
In this case, however, RMO 1 denied making the statement or taking any adverse personnel action against Complainant. Although Complainant alleged a per se violation, Complainant did not prove the discrimination because he did not establish by a preponderance of the evidence that the incident occurred as alleged or that he was harmed or that the incident on August 1, 2014 impacted a term or condition of employment. We find that the evidence does not support the claim.
Similarly, with regard to the hostile environment claim, we find that the incidents lacked the requisite pervasiveness or severity necessary to alter the conditions of his employment.
With regard to Complainant's reprisal claim, and for purposes of analysis, we will assume that the management officials were aware of his prior EEO activity. Complainant engaged in EEO activity five months before the subject placement on off-duty status by the individuals named in his earlier EEO activity. These facts are sufficient to raise an inference of retaliatory animus. See Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and has noted that, "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's] rejection." Id. at 255-56. Although the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded a complainant. See Complainant v. Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120140085 (January 15, 2015) (finding that the agency failed to articulate a legitimate, nondiscriminatory reason for its action when the record provided no affidavit or explanation or evidence from any agency official articulating the specific reasons which the complainant could rebut).
The Agency found that it had articulated legitimate, nondiscriminatory reasons for questioning Complainant about his absence from the window and for placing Complainant in an off-duty status. With regard to claim one, the responsible management officials stated that Complainant was not at his duty station at the counter and that Complainant reacted inappropriately when he was questioned by his supervisor. With regard to the second claim, RMO1 instructed him to leave after the supervisor witnessed Complainant throw a chair. RMO2 placed him on Emergency Placement because she viewed Complainant as a threat. The incident was also witnessed by the union official who was present during the interview with the supervisor. The union official corroborated that he witnessed Complainant get up, slam the chair against the table.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
In this case, Complainant failed to rebut the stated reasons or prove pretext.
After a review of the record in its entirety, we find that Complainant failed to establish, by a preponderance of the evidence that he was discriminated against because of his race, sex, color, disability, or prior EEO activity.
Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 20, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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