0120162630
03-05-2018
Arnold C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arnold C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120162630
Agency No. 1K304002415
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 25, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. 791 et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Labor Custodian at the Agency's Georgia Network Distribution Center facility in Atlanta, Georgia.
Complainant contacted the EEO Office on September 21, 2015. On January 2, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him:
1. On the bases of race (African American) and age (60) when, on September 3, 2015, after he reported that he was threatened by a contract driver, management failed to properly address the matter; and,
2. On the bases of race, color (Brown), sex (male), disability, age (60), and reprisal for prior EEO activity when, on February 3, 2016, his supervisor instructed him to hit the clock and go home for failure to follow instructions and insubordination.
The pertinent record reflects the following facts. Complainant serves as a Full -Time Laborer Custodian. He named four management officials: his supervisor, Supervisor, Maintenance, (Hispanic, male, 58) ("RMO1"); Manager, Maintenance (Caucasian, male, 57) ("RMO2"); Manager, Maintenance Operations, (Caucasian, male 57) ("RMO3"); and Acting Supervisor, Maintenance Operation (Caucasian, male, 61) ("RMO4"). Complainant has prior EEO activity. The record shows that management was aware of his prior EEO activity.
With regard to claim 2, Complainant identified his disability as Post-Traumatic Stress Disorder (PTSD). He averred that he had this condition as a result of the incident described in claim 1. He had no work restrictions and could otherwise perform all the duties of his position, except he stated that he had a problem working near the area of the incident.
Claim 1 - Altercation Response
Complainant identified his race as Black and his age as 60. On September 3, 2015, after doing some mowing, Complainant was outside in the truckers' lane and headed back to take his break. A truck driver sped past, after the driver blew his horn. Complainant averred that the truck passed him going more than 40 miles per hour. After Complainant saw the truck driver enter the gate, Complainant confronted him. Complainant placed his mower in front of the truck, blocking the truck from moving. Complainant told the contract driver that he felt that he almost hit Complainant with his truck. At the time, Complainant was holding a phone or radio in his hand. The truck driver, who was also Black, picked up an iron pipe and moved toward Complainant.
While this was happening, Complainant called his supervisor and told him what was going on. He asked his supervisor to come to the loading dock. The supervisor testified that, after he arrived, he instructed the contract driver multiple times to put the pipe down before the contract worker complied. The police were called. No police report was taken because the police stated that no blows were taken and they were unable to determine fault.
The record testimony is consistent. Complainant and management agree on all the facts, except that the contract worker told management that he picked up the pipe for his own protection, after Complainant had approached him aggressively and he saw something in Complainant's hand that the worker thought was a weapon.
The record shows that RMO2 contacted the driver's supervisor and the driver admitted he was hot-headed and apologized. RMO2 explained that the driver was a veteran and that management had to be very careful about taking away a veteran's livelihood. Because Complainant told RMO2 that he felt threatened by the driver, RMO2 permitted Complainant to work in another area, away from contact with the truck driver. The matter was referred to the Threat Assessment Team.
Complainant alleged that management did not take appropriate action because they were aware that the contract driver had a history of violent behavior and management. Complainant believed that the contract driver should have been barred from returning to the Atlanta Network Distribution Center because the Postal Service has a Zero Tolerance Policy about violence in the workplace that should apply to contract employees and not just Postal employees.
With regard to his age claim, Complainant averred that he was asked when he was going to retire. He did not elaborate on the details of the alleged statement.
Claim 2 - Complainant told to hit the clock
On February 3, 2016, Acting Supervisor (RMO4) ordered Complainant to "hit the clock" and go home. This was witnessed by his Supervisor (RMO1), who consented to the order for Complainant to go home. He was later seen doing vacuuming on the second floor. Complainant asked RMO4 why he was being sent home. RMO4 told Complainant that the reason was his failure to follow instructions and insubordination. As further background, on the day before, February 2, 2016, Complainant stated that the Acting Supervisor (RMO4) took him off his "high pay level detail" and assigned him to clean the second floor. Complainant disagreed with the change in assignment. On February 3, 2016, Complainant told RMO4 that he was not going to do the assignment.
Complainant was out of the office from February 3, 2016 to February 11, 2016, after being put off the clock and was initially coded Absent Without Leave. He returned to work on February 12, 2016. The record shows that he was charged Leave Without Pay for the period February 3 - 9, 2016 and was placed on AWOL for February 10 - 11, 2016. Complainant filed a Union Step 2 Grievance dated March 2, 2016, regarding the leave issue.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that management either denied they had engaged in any unlawful personnel action or stated a legitimate reason for telling him to go home. The Agency found that Complainant failed to show that the one incident constituted unlawful hostile work environment.
The instant appeal followed. On appeal, Complainant states that the Agency did not comply with its zero-tolerance policy. He also contends that he was subjected to disparate treatment because the Maintenance Manager favored contract workers and had inappropriately sought to protect the contract driver, rather than Complainant, who was an employee. He states that, at no time, did he fail to follow instructions. He stated that "upper level managers used [the] acting supervisor to go after employees that they do not like or for personal reasons."
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. (Aug. 5, 2015) (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").
Disparate Treatment - Claim 2
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, 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. 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 Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
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. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We will assume for purposes of our analysis that Complainant is a qualified individual with a disability and that Agency management was aware of his prior EEO activity when Complainant was sent home on February 6, 2016. However, the responsible management officials articulated legitimate, non-discriminatory reasons for telling Complainant to go home. He had been told to perform an assignment and announced that he would not do so and went home instead. Complainant failed to prove, by a preponderance of the evidence, that the proffered reason was a pretext designed to make discriminatory animus on the basis of his race, color, sex, age, disability or prior EEO activity.
Harassment - Claims 1 and 2
To establish a claim of hostile environment harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and / or had the purpose or effect of unreasonably interfering with the work environment and / or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep't of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016).
In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, color, age, sex, disability and/or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
We note that Complainant perceived the September 3, 2015 event to be hostile and that he disagreed with the Agency's reasoning for allowing the contract driver to continue working at the facility. However, although Complainant asserted that he was subjected to harassment based on his race, color, sex, age and EEO activity, he provided no evidence to show that the alleged incidents occurred because of his protected bases with regard to either of the claims in his complaint.
Therefore, based upon our review of the record, we find that Complainant has not met his burden of establishing that the alleged events occurred because of his protected bases and / or prior EEO. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 5, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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