01a43521
10-18-2004
Will P. Holly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Will P. Holly v. United States Postal Service
01A43521
October 18, 2004
.
Will P. Holly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43521
Agency No. 4F-956-0090-02<1>
Hearing No. 370-A3-2288X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a Rural Carrier at the agency's Folsom, California
facility, filed four formal EEO complaints, alleging that the agency
had discriminated against him on the bases of race (African-American),
national origin (USA), sex (male), religion (Baptist), color (Black),
age (D.O.B. 10/3/1953), and in reprisal for prior EEO activity.
By letter dated October 1, 2002, the agency stated that it was
consolidating complainant's four complaints and accepting the following
four claims for investigation:
(1) Complainant alleged that he was subjected to unspecified harassment
on March 15, [2002] and March 19, 2002;
(2) complainant alleged that he was subjected to unspecified harassment
on April 15, 2002;
on June 11, 2002, complainant was issued a Letter of Warning dated June
5, 2002; and
complainant was issued a Notice of Removal dated July 2, 2002, charging
him with Unacceptable Conduct/Manipulation of Rural Carrier Salary
System.<2>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision on March 18, 2004,
without a hearing, finding no discrimination.
In the AJ's decision, the AJ stated that �complainant ...made an
insufficient showing on essential elements of all of his claims which
he has the burden of proof.� Regarding claims (1) and (2), the AJ
concluded that complainant did not establish a prima facie case of
harassment. Regarding claims (3) and (4), the AJ concluded that there was
no evidence that similarly situated employees of a different protected
status were treated differently than complainant.
The agency's final order dated April 16, 2004, implemented the AJ's
decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Claims (1) and (2)
Regarding claim (1), in complainant's affidavit dated October 25,
2002, complainant stated that on March 15, 2002, �[his] union
representative...,stopped to say, �[a named supervisor] want[s] to have
a meeting...in the office.' Then, [he] stopped working to get verbally
harassed.� In addition, complainant stated in his affidavit that on
March 19, 2002, �[his] union representative..., [said], �the Customer
Service Supervisor, want[s] to have a meeting.' [He] stopped working to
get verbally harassed.�
Regarding claim (2), complainant, in his affidavit, stated that �on
April 15, 2002, I was retaliated against, and [it was] generally a
repeat of the [March 19, 2002] incident.� The record contains a copy of
complainant's response to the AJ's Notice of Intent to Issue a Decision
Without a Hearing. Therein, complainant sets forth the same assertions
regarding claims (1) and (2) as he did in his affidavit.
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. United States Postal Service, EEOC Appeal No. 01972699
(August 14, 1998) (citing McKinney v. Dole 765 F. 2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, 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 Systems, 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).
The Commission determines that complainant failed to establish that he
was subjected to a hostile work environment. The record reflects that
complainant has not specified what alleged statements by agency officials
constituted verbal harassment. We find that complainant has not shown
that the actions alleged were sufficiently severe or pervasive as to
constitute hostile work environment harassment or to have a deterrent
effect on complainant's use of the EEO process.
Claims (3) and (4)
A claim of disparate treatment is examined under the three-part 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 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. 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).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim (3), the
record contains a copy of the Letter of Warning dated June 5, 2002.
Therein, complainant's supervisor states that complainant's �route [has
been] evaluated at approximately 6.63 hours a day. [Complainant has]
continually exceeded this time by more than one hour a day.�
Regarding claim (4), the record contains a copy of complainant's Notice of
Removal dated July 2, 2002. Therein, the Supervisor, Customer Services
(S1) stated that complainant had engaged in unacceptable conduct and
manipulated the rural carrier salary system. Specifically, S1 stated
that �[complainant] tampered with the manner in which customers were
bundling outgoing mail and thus [he] manipulated [the] amount of
collection mail...with the result [that] the salary for [his] route
was overstated.�
Upon review of the record, the Commission finds that complainant failed
to establish pretext.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, we AFFIRM the agency's final order implementing the AJ's
finding of no discrimination.
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
October 18, 2004
__________________
Date
1The record reflects that Agency No. 4F-956-0090-02 was consolidated
by the agency with three other EEO complaints filed by complainant,
identified as Agency Nos. 4F-956-0108-02, 4F-956-0139-02, and
4F-956-0141-02.
2It appears from the record that complainant's removal was subsequently
reduced to a suspension.