0120071206
03-10-2008
Wilbern D. Wood, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilbern D. Wood,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071206
Agency No. 4G-700-0270-03
Hearing No. 310-2005-00280X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 24, 2006 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Distribution Clerk, PS-6, at the agency's Arlington Main Post Office in Arlington, Texas.
Complainant filed two formal complaints on August 9, 2003 and February 23, 2004, respectively (Agency Nos. 4G-700-0270-03 and 4G-700-0032-04). Complainant's two complaints were consolidated for joint processing under one case number identified as Agency No. 4G-700-0270-03. Complainant claimed that he was the victim of unlawful employment discrimination on the bases of race (Caucasian), sex (male), age (D.O.B. 10/09/40), and in reprisal for prior EEO activity when:
(1) on May 28, 2003, he was denied union representation and he was harassed when given a formal discussion about breaks and lunches on an ongoing basis;
(2) on June 18, 2003, management denied his sick leave, harassed him about his sick leave and freedom of speech on an ongoing basis, denied him his check, singled him out, and gave him unreasonable duties; and a co-worker indicated that he was a racist;
(3) on July 9, 2003, he received a Letter of Warning for unsatisfactory work performance;
(4) on July 25, 2003 and ongoing, he was required to work on the dock loading and unloading trucks all day while the other clerks were not required to do the same and his duties were not rotated fairly;
(5) on August 6, 2003, he was subjected to a hostile work environment when a co-worker threatened him by stating that he should watch his back and watch his front as well and after management conducted an investigation, they concluded that no threat occurred against him;
(6) on September 10, 2003, he was issued a 7-day suspension for failure to follow instructions; and
(7) on October 28, 2003, he was issued a Notice of Removal for unacceptable conduct with an effective date of November 29, 2003. 1
On October 20, 2003 and March 8, 2004, the agency issued partial dismissals. The agency accepted for investigation a portion of claim (2) and claims (3)-(7). The agency dismissed claim (1) and the portion of claim (2) concerning complainant's claim that a co-worker made a comment to him for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency determined that complainant failed to demonstrate that he suffered harm to a term, condition or privilege of his employment; and that his claims constitutes a collateral attack on the grievance process. The agency further determined that the alleged discriminatory incidents did not rise to the level of harassment.
At the conclusion of the investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). The agency thereafter filed a motion to dismiss, or in the alternative a Motion for Findings of Fact and Conclusions Without a Hearing Pursuant to 29 C.F.R. � 1614.109(g). In its motion, the agency requests that the AJ issue a decision in its favor.
The record reflects that on or around September 19, 2005, complainant contacted the AJ requesting additional time to respond to the agency's motion. By letter dated September 19, 2005, the AJ granted complainant's request by allowing him until October 5, 2005 to provide a response. The record reflects that by facsimile dated October 4, 2005, complainant requested a 90-day extension to respond to the agency's motion, asserting that his mental condition prohibited him from responding to the motion. On October 6, 2005, the AJ denied complainant's 90-day extension request. However, the AJ gave him until October 28, 2005 to provide a response. On October 28, 2005, complainant filed a motion to dismiss without prejudice to re-file stating that he could not proceed with his EEO complaint due to his mental condition. On December 21, 2005, the AJ dismissed complainant's complaint without prejudice and issued an order permitting complainant to re-file the complaint upon submission of a mental health provider's release.
The agency thereafter filed a motion to dismiss the case with prejudice in which complainant filed opposition. By letter to the agency dated October 5, 2006, the AJ denied the agency's motion. The AJ stated that "this case was dismissed without prejudice, is not pending before me and, as such, I have no jurisdiction to enter any order in connection with the matter." The AJ further stated "at such time as complainant is released from his medical limitations which kept him from proceeding earlier, he may refile the case." The record reflects that, in accordance with the AJ's December 21, 2005 Order, the agency may consider the AJ's order a cancellation of complainant's request for hearing and issue a final agency decision "if complainant failed to file a mental health provider's release." The record reflects that the agency ultimately concluded that it would be unreasonable to allow complainant's case to remain open indefinitely because complainant did not submit medical documentation in support of his request to withdraw and he had not submitted any documentation of his current medical condition. Therefore, in accordance with the AJ's Order, the agency issued a final decision which is the subject of the instant appeal.
In its November 24, 2006 final decision, the agency determined that claim (1) and a portion of claim (2) concerning a co-worker's comment indicating that complainant was a racist were properly dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) in its October 20, 2003 and March 8, 2004 partial dismissals.
Regarding portion of claim 2 and claims (3) - (7), the agency found no discrimination. The agency found that complainant failed to establish a prima facie case of race, sex, age and reprisal discrimination because complainant did not show that he was treated differently than similarly situated individuals outside of his protected classes. The agency further found that even assuming complainant established a prima facie case, management articulated legitimate, nondiscriminatory reasons which complainant failed to show were a pretest for discrimination. The agency found that complainant had routinely failed to follow orders, failed to do his fair share of work, created safety hazards, falsely accused co-workers of making threats and was disruptive in the workplace.
Regarding the harassment claim, the AJ found that complainant failed to prove he was subjected to harassment sufficiently severe or pervasive so as to render his work environment hostile.
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).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant did not prove were a pretext for discrimination, and that 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.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848, Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint an attorney to represent you and that the Court 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 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
March 10, 2008
__________________
Date
1 The record reflects that the agency granted complainant's request that his complaint be amended to include claims (5) and (6).
2 On appeal, complainant does not challenge October 20, 2003 and March 8, 2004 partial dismissals issued by the agency, regarding two other claims (claim (1) and portion of claim (2) concerning a co-worker's comment indicating that complainant was a racist)), Therefore, we have not addressed these issues in our decision.
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0120071206
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120071206