01A34825
07-14-2004
Woodrow Johnson, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Woodrow Johnson, Jr. v. United States Postal Service
01A34825
July 14, 2004
.
Woodrow Johnson, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A34825
Agency No. 4D-280-0224-01
Hearing No. 140-2002-08335X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final action.
The record reveals that complainant, a Level 5 Manual Distribution
Clerk at the agency's Ballantyne Station, Charlotte, North Carolina
(�facility�), filed a formal EEO complaint on October 15, 2001, alleging
that he was discriminated against and harassed on the bases of race
(African-American) and retaliation for prior EEO activity on various
dates from August 20, 2001 and continuing. Complainant alleges that
on August 20 and August 27, 2001, and September 7, 2001, he observed
two (2) white co-workers (W1 and W2) being allowed to work overtime on
their days off when he was not allowed to do so. Complainant alleges
that in August of 2001, he complained to his Administrative Supervisor
(S1) about the facility's practice of allowing white employees with less
seniority to work overtime. S1 stated that complainant's scheduled days
off were Sunday and Monday, and that during the period of August 20, 2001
to September 2001, complainant worked 62 hours of overtime. Further, S1
stated that complainant could have worked more overtime if not for taking
72 hours of sick leave and 33 hours of annual leave. The facility's
Station Manager (SM) agreed with S1 and stated that complainant worked
521 hours of overtime during pay period 9 in Fiscal Year (FY) 2001 and
pay period 8 of FY 2002, despite taking the aforementioned sick and
annual leave.
Complainant further alleged that he was harassed from August of 2001
to the present on eight (8) separate occasions. These alleged acts
of harassment include: (1) denial of overtime; (2) being accused of
taking a break when S1 believed he should be working on July 12, 2002;
(3) on October 8, 2002, the SM moved a more junior employee instead
of complainant, he was watched by the SM for about three (3) minutes
and was then escorted off the facility premises by S1; (4) on or about
November 8, 2002, he received a Letter of Warning (LW), later expunged,
for the October 8, 2002 incident; (5) on or about February of 2002,
complainant was taunted in the facility parking lot by the SM; (6) on or
about January 11, 2002, complainant was singled out for being tardy while
other facility employees were not; (7) on January 28, 2003, complainant
grieved not receiving overtime and settled for two (2) hours of overtime;
(8) on January 31, 2003, complainant was watched by a facility Supervisor
for about three (3) minutes. Agency management denied discrimination,
but stated that complainant required more attention and supervision than
other employees.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination. On the overtime issue, the AJ initially found
that complainant established a prima facie case of race discrimination.
In so finding, the AJ noted that W1 and W2 were allowed to work more hours
of overtime than complainant was allowed to work in FY 2001 and 2002.
The AJ further found that complainant established a prima facie case
of retaliation on the overtime allegation, as he engaged in protected
activity, the agency was aware of his protected activity and the agency
then scheduled complainant for fewer hours of overtime. However, the AJ
found that the agency articulated legitimate, nondiscriminatory reasons
for its actions, namely that complainant had fewer hours of overtime
because he took a substantial amount of leave, and his scheduled day
off of Monday was used as a vacation day less often than the Friday
day off used by W1 and W2. The AJ then found that complainant failed
to present evidence which demonstrated that it was more likely than not
that the agency's articulated reasons were a pretext for discrimination
or retaliation. AJ's Decision at 72.
The AJ then found that complainant failed to provide sufficient evidence
that he was subjected to harassment which was sufficiently severe or
pervasive to alter the conditions of his employment and create an abusive
or hostile environment. The AJ considered complainant's allegations
of harassment and found they were insufficiently severe acts to create
a hostile work environment. Specifically, the AJ found that incidents
such as being escorted out of the facility and receiving a Letter of
Warning were insufficiently severe to create a hostile work environment.
The AJ also found credible the agency's statements that complainant is
a competent employee whose work habits required increased supervision,
and thus complainant's allegations of harassment were complaints
about the agency's exercise of supervisory authority. AJ's Decision
at 75. As such, the AJ found that complainant failed to establish by a
preponderance of the evidence that he was harassed on the basis of race
or retaliation. The agency's final action implemented the AJ's decision.
Complainant has made no contentions on appeal, and the agency requests
that the Commission affirm the final action.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Regarding
complainant's allegation that White employees with less seniority were
granted more overtime than he was, the Commission initially concurs with
the AJ's finding that complainant established a prima facie case of race
discrimination and retaliation. However, we concur with the AJ's finding
that the agency articulated legitimate, nondiscriminatory reasons for
its actions regarding complainant being given less overtime than other
facility employees. In so finding, we note the statements of agency
management that overtime was assigned to satisfy the facility's business
needs, depending on mail volume and staffing. The record demonstrates
that complainant had fewer hours of overtime than W1 and W2 as he took
a substantial amount of sick and annual leave during FY 2001 and 2002,
and his scheduled day off of Monday was used as a vacation day (thus
requiring overtime by other employees to perform the work) less often
than the Friday day off of W1 and W2. We find that complainant failed
to proffer evidence to establish that the agency's articulated reasons
were more likely than not a pretext for discrimination or retaliation.
In addition, we concur with the AJ's finding that complainant failed
to establish that he was harassed by agency management on the bases of
race or retaliation. We further find that the incidents alleged by
complainant were isolated and insufficiently severe or pervasive to
create a hostile work environment. See Harris v. Forklift Systems Inc.,
510 U.S. 17, 21 (1993). We thus discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's final action.
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
July 14, 2004
__________________
Date