0120131934
09-05-2013
William A. McCommons, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
William A. McCommons,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131934
Agency No. 4C-150-0091-12
DECISION
On April 2, 2013, Complainant filed an appeal from the Agency's March 15, 2013, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Carrier at the Agency's Erie-Presque Isle Station facility in Erie, Pennsylvania.
On September 17, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of age (46) and reprisal for prior protected EEO activity when:
1. On July 13, 2012, Management challenged Complainant's medical documentation;
2. Management did not change the evaluation of the route when Complainant began the route on July 20, 2012;
3. On August 8, 2012, Management counted his route;
4. On August 16, 21, and 28, 2012, Management insisted they would ride with Complainant on his route;
5. Complainant's FMLA sick leave for August 16-20, 2012 was not paid;
6. Management required him to provide medical documentation for his August 21, 2012 absence;
7. Complainant's August 27, 2012 PS Form 1767, reporting a work hazard, went unanswered;
8. On August 28, 2012, Management issued Complainant a 14 Day Suspension;
9. On August 29, 2012, Complainant was sent home;
10. From September 10-13, 2012, Complainant was sent home for no work available;
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. This appeal followed. Complainant asserted that the Agency's actions constituted harassment and discrimination. He also noted that the investigation established a prima facie case of discrimination.
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").
Dismissal of Claim (5)
We note that the Agency dismissed claim (5). The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to his FMLA leave is with the Department of Labor. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the FMLA process. As such, we find that claim (5) was properly dismissed albeit on alternative grounds.
Disparate Treatment
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).
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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the Agency has provided legitimate, nondiscriminatory reasons for its actions. As to claim (1), the Station Manager indicated that she challenged Complainant's medical documentation because Complainant has had his medical documentation changed. As such, management was concerned that he had provided "convenient restrictions" that matched his assignment. In claim (2), Complainant asserted that he asked management to evaluate his route. The Station Manager noted that Complainant's route had taken those assigned the route before, an average of 7 hours and 52 minutes. She indicated that there was no reason to evaluate the route nor plans to reevaluate it. On August 8, 2012, Complainant indicated that Management counted his route as alleged in claim (3). The Station Manager stated that Complainant had been going over standards for his route by an hour. She wanted to conduct the count to find out if there was anything that could be done to help him do the casing better as required as a manager. The following week, on August 16, 2012, the Station Manager asked to ride along with Complainant as raised in claim (4). The Station Manager noted that she rode with him on August 16, 2012. On August 20, 2012, the Station Manager asked to ride with him again the following day on August 21, however, he was absent. When she asked again on August 28, he refused. As a result of the refusal and Complainant's insubordination, the Station Manager issued Complainant the 14-day suspension which was the subject of claim (8). In claim (6), Complainant was asked to provide medical documentation for his absence on August 21, 2012. The Station Manager stated that he was asked to bring in medical documentation because she had informed him that she would be riding with him but he refused and subsequently was absent on August 21, 2012. In claim (7), Complainant asserted that he submitted a Notice of Hazard form to the Agency regarding the Station Manager's behavior. The Supervisor indicated that he received the form and discussed it with the Union Steward. Further, the Supervisor discussed the matter with the Station Manager. As such, Management indicated that it addressed Complainant's concerns. On August 29, 2012, Complainant was sent home because he was getting angry at the Station Manager. He indicated that he could feel his blood pressure going up, so the Station Manager sent Complainant home for his safety as claimed in claim (9). Finally, in claim (10), Complainant asserted that on September 10-13, 2012, he was sent home because there was no work available. The Station Manager indicated that Complainant stated to her that he could not be supervised. The Station Manager noted that all carriers need to be supervised; Complainant was sent home until he could work for a supervisor. Upon review of the record, we find that Management has provided legitimate, nondiscriminatory reasons for its actions.
We now turn to Complainant to show that the Agency's actions were pretext for discrimination based on his age and/or in reprisal for his prior EEO activity. Upon review, we find that Complainant has not provided any evidence to show that the Agency's reasons were pretext. As such, we conclude that Complainant has not established that the actions alleged constituted disparate treatment based on his age and/or prior EEO activity.
Harassment
It is well-settled that harassment based on an individual's age and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on age and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . 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 on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review, we find that Complainant has not shown that the Agency's actions were because of his age and/or prior EEO activity. Therefore, we conclude that Complainant has not shown that he was subjected to harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final 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
September 5, 2013
__________________
Date
2
0120131934
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131934