0120082027
09-17-2009
Angel Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angel Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082027
Hearing No. 540-2007-00089X
Agency No. 4G-870-0097-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 25, 2008, final order 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. Complainant alleged that the agency discriminated against him
on the bases of national origin (Puerto Rican), sex (male), color (dark
brown), age (49), and reprisal for prior protected EEO activity when:
1. From June 28, 2006 onward, he was subjected to repeated
administrative adverse action and degraded in front of his coworkers;
2. On August 9 and 24, 2006, he was issued a Notice of Suspension
of 14 Days for Unacceptable Conduct/Failure to Follow Instructions;
3. On September 12, 2006, he was issued a Letter of Warning; and
4. In October 2006, management refused to process his Office of
Workers' Compensation Programs (OWCP) forms.
The record reveals that complainant is a Letter Carrier, PS-01, and local
union representative at the agency's Airport Station in Albuquerque,
New Mexico. On August 3, 2006, complainant was conducting a meeting in
his capacity as a union steward when his supervisor knocked on the door of
the union office. Complainant instructed his supervisor not to come in,
as he was conducting union business. The supervisor told complainant
that approximately twenty minutes had gone by and that he needed to
return to his route. The supervisor indicated that if more time was
required it could be rescheduled at a later date. Complainant ignored the
supervisor's instruction. The supervisor then repeated the instruction,
indicating that it was a direct order. Complainant responded that he
wanted the instruction in writing; he also asked several times if he
could ask the supervisor a question. Complainant was then told that if
he ignored the direct order, he would be placed on administrative leave.
Complainant was ultimately escorted off the premises. Approximately a
week after this incident, on August 9, 2006, the supervisor issued a
Notice of Suspension of 14 Days for Unacceptable Conduct/Failure to
Follow Instructions.1
On August 24, 2006, complainant's supervisor issued another Notice of
Suspension for Failure to Follow Instructions. The supervisor indicated
that complainant failed to follow instructions to stop engaging in
unnecessary conversation with other carriers.2 The following month, on
September 12, 2006, a Letter of Warning was issued against complainant
for failure to follow instructions to stop engaging in unnecessary
conversations with others while on the workroom floor.
On October 11, 2006, complainant attended a stand-up meeting conducted
by a Manager. Complainant asked the Manager questions and then started
giving out information regarding future union activities. This resulted
in a shouting match. Complainant's supervisor asked him to calm down.
Meanwhile, the Manager approached complainant and as she approached him,
she held out her arm which resulted in her touching him either on his
mouth or chin. Complainant shouted that she had touched him and then
called the police to report the incident. He also filed a CA-1 Workers'
Compensation form for traumatic injury, claiming that the Manager had
assaulted him and that he had sustained a headache and upset stomach as
a result of the assault. Complainant asserts that following the incident
his CA-1 form was "sat-on" and not signed for seven days.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision
without a hearing finding no discrimination. The AJ determined that
assuming arguendo that complainant established a prima facie case of
discrimination as to all bases, the agency had articulated legitimate
nondiscriminatory reasons for its actions, namely, that the agency issued
both suspension notices because complainant engaged in inappropriate
conduct by failing to return to the workroom floor as instructed on August
3, 2006, and for continuing to engage in unnecessary conversations with
other employees on several occasions after being instructed to cease
such conduct.
Likewise, the AJ found that complainant failed to show that he had
been discriminated against or subjected to reprisal when management
officials took one week to sign his CA-1 Workers' Compensation form.
The AJ found that complainant failed to show that he had suffered an
adverse employment action as a result of this short delay. Moreover,
she found that the EEOC has long held that claims concerning delays in
submitting paperwork to the OWCP constituted a collateral attack on the
OWCP process and failed to state a claim in the EEO process.
On appeal, complainant contends, among other things, that the AJ erred
when she issued a summary judgment decision. He maintains that she
failed to consider that the agency was attempting to impose progressive
disciplinary measures against him. Further, he maintains that credibility
issues needed to be resolved and that the AJ failed to fully consider
the fact that he had been assaulted by his Manager.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order
finding no discrimination. Initially, we find that the Administrative
Judge's issuance of a decision without a hearing was appropriate, as there
are no material facts at issue in this case. The Commission agrees that
even if we assume arguendo that complainant established a prima facie
case of discrimination as to all bases, we find the agency articulated
legitimate nondiscriminatory reasons for its actions. Specifically,
complainant was issued discipline because he failed to respond to a
direct order to return to his post and he failed to stop engaging in
unnecessary conversations with coworkers.
Further, we find that complainant's contention that the AJ did not fully
consider the Manager's assault upon him is not supported by the record.
We note that the record does not demonstrate that the Manager took
this action based on any of complainant's protected bases; as such,
it is immaterial to this decision. Additionally, we find that, even
if we assume arguendo that complainant stated a claim with respect
to the OWCP paperwork, we find complainant has not demonstrated that
discrimination was involved with respect to the minor delay of signing-off
on his OWCP paperwork. We find that complainant has not offered, and
the record does not provide, any evidence that demonstrates that the
agency's reasons are pretext for unlawful discrimination or retaliation.
Finally, to the extent that complainant is alleging that he was subjected
to a hostile work environment, the Commission finds that the incidents
complained of are not severe or pervasive enough to establish a hostile
work environment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997), citing Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993) (harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment). Accordingly, we find that the preponderance of the record
evidence does not establish that discrimination occurred as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 17, 2009
Date
1 Complainant filed a grievance regarding this discipline and on
September 1, 2006, it was reduced to a discussion.
2 This matter was grieved and reduced to a discussion on September 11,
2006.
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0120082027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082027