01970940
08-29-2000
Calvin Anderson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Calvin Anderson v. United States Postal Service
01970940
08-29-00
.
Calvin Anderson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01970940
Agency No. 4G-720-1161-95
DECISION
INTRODUCTION
On November 6, 1996, Calvin Anderson (the complainant) initiated a timely
appeal to the Equal Employment Opportunity Commission (the Commission).<1>
Complainant's complaint alleged that he was discriminated against
on the bases of his race (Black), color (Black), national origin
(African-American), Religion (Islam), sex (Black Male), age (47),
disability (job-related stress) and reprisal for engaging in prior EEO
activity in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq., � 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.<2>, and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented herein are whether complainant proved, by a
preponderance of the evidence, that he was discriminated against because
of the above bases when:
1) he was told he had to start his military leave on his off day,
Saturday, June 3, 1995;
2) he was told to get off the telephone, while using it to file a
complaint, and to get back to work while others were allowed to use the
telephone;
3) he was given a job discussion for unsatisfactory work performance on
May 9, 1995, after being off three (3) months and was confronted about
his job performance in a rude manner on May 16, 1995; and
4) his supervisor stood over him and told him to go back to work on May
24, 1995, while he was completing a Vehicle Repair Tag, Form 4565.
BACKGROUND
Complainant filed his formal complaint on July 10, 1995. Following an
investigation of his complaint, complainant was provided a copy of the
investigative file and notified of his right to request a hearing before
an EEOC Administrative Judge (AJ) on May 8, 1996. Complainant did not
request a hearing within the specified 30-day time period. Therefore,
the agency issued a final decision dated October 4, 1996, which found
that complainant had not been discriminated against. It is from this
decision that complainant now appeals. On appeal, complainant speculated
that his supervisor could have tampered with employee records, indicated
that certain allegations had been combined by the agency and accused
the EEO counselor of not providing him with enough time to complete his
formal complaint form. According to complainant, he was only given one
hour and thirty minutes.
The record contains a letter dated April 4, 1995, from complainant's
psychologist, Doctor-1. According to Doctor-1, he began treating
complainant in February 1995. Doctor-1 indicated that complainant,
at that time, had been off work since February 13, 1995, after a
confrontation with his supervisor, S-1. Complainant, he noted, complained
of gastric problems for which he was under the care of Doctor-2.
According to Doctor-1, complainant was tested on the Psychological
Assessment Inventory and scored within normal limits. This reflected
"[a] normal and well integrated personality profile." However, Doctor-1
indicated that complainant's scores were "highly elevated" with regard
to persecutory symptoms. Doctor-1 felt that this was consistent with
complainant's opinion that he was being persecuted by his supervisors.
According to Doctor-1, complainant does:
not have any particular emotional complaints when he does not have
to deal with the Postal Service. His stress is specific to his job.
When on the job, he has ongoing anxiety and strong paranoid feelings
of persecution. The anxiety gets unconsciously converted into somatic
problems involving gastrointestinal distress, muscle tension and aching,
along with headaches. He then becomes very irritable and at times,
explosive.
Finally, we note Doctor-1's statement that "I am continuing to work with
[complainant] in an effort to assist him in dealing with stress. Were his
employers willing to work with him in a straight forward and cooperative
manner, there would be no difficulty in getting him back to work."
Complainant, in his affidavit, indicated that he thought his physical
condition was a basis for the actions taken against him because when he
was "on sick leave for job-related stress, [S-1] informed one of the
employees that I did not want to work." Although S-1 testified that
she was not aware complainant might have had a physical impairment,
she indicated that on February 13, 1995, he requested sick leave after
stating that he was "stressed out." Subsequently, he gave her a Duty
Status form indicating that he could not work at all.
ANALYSIS AND FINDINGS
Complainant argued that the above actions by S-1 (44, Black, female) were
based on his race, color, national origin, Religion, disability, sex,
age, and reprisal for engaging in prior EEO activity. These allegations
constitute claims of disparate treatment employment discrimination. As
such, they must be analyzed under the tripartite analysis enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron
Inc., 600 F.2d 1003 (1st Cir. 1979)<3>, Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981), Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
affirmed, 545 F.2d 222 (1st Cir. 1976) and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). We will assume for
purposes of our analysis that complainant was able to establish prima
facie cases of discrimination with regard to all of the above bases.
Therefore, we will focus on whether the agency's explanations for its
actions were a pretext for discrimination. Burdine, 450 U.S. at 253.
Allegation 1
According to complainant, S-1 told him that he had to start his military
leave on his off day, Saturday, June 3, 1995, while C-1 was allowed to
start his military leave after his off day. S-1 stated that she told
complainant that his military leave had to start on the date indicated
on his orders.<4> According to her, this was consistent with prior
practice.<5> She indicated that by coincidence, complainant's military
leave happened to start on his off day. S-1 also indicated that C-1 was
not a military member during the time she was his supervisor. She noted
that two other employees, C-2 (a Black male) and C-3 (a White male), who
had off days of Thursday and Friday, respectively, started their military
leave on Saturday because this was the day indicated on their orders.<6>
The investigation reviewed numerous copies of C-2 and C-3's orders between
June 1994 through June 1995, which indicated that their military leave
always began on the date indicated on their orders.
Allegation 2
According to complainant, S-1 told him to get off the telephone and to
return to work. He maintained, however, that C-4 (a female) and C-5
(an Hispanic male) were allowed to use the telephone whenever they
wanted. Complainant also stated that he was not aware of any policy
concerning telephone usage, with the exception that employees had to
ask permission before using the office telephone.
S-1 testified that she allowed all of the clerks and carriers to use the
telephone. The only exception, however, was that if an employee wanted
to file a complaint they could not use the telephone.<7> According
to S-1, there was a union steward at the station and employees were
given time to consult with him. S-1 also stated that employees were
told not to use the time-keeper's telephone or the "HOTLINE," and were
asked to limit their calls to 3 minutes. Finally, she indicated that
if the station's telephones were in use, and there was an emergency,
employees could use the pay phones.
With regard to complainant's specific allegation, S-1 testified that he
left his duty area, without first seeking permission, and was found using
the telephone in the break room. S-1 stated that she told him, in the
presence of the union steward, to return to his duty area. Complainant,
according to S-1, was later granted time to use the telephone that day.
Allegation 3
According to complainant, on May 9, 1995, two days after he returned
to work from sick leave, S-1 gave him an official discussion about his
job performance. He also indicated that on May 16, 1995, S-1 "constantly
walked by my case stalking me," and then with a rude tone of voice pulled
his curtailment down. Complainant further stated that S-1 "knew I had
a lot [sic] of mail. She did not take that into consideration. I had
about twenty feet of mail. This type of behavior of [S-1] stalking me
and watch[ing] me made me nervous." Finally, complainant maintained that
"a White person would have been treated with dignity."
S-1 denied giving complainant an official discussion on May 9, 1995.
According to her, complainant was only asked to come to the station
manager's office along with the union steward. Once there, he was
asked about the problems he was having casing the mail for his route.
According to S-1, he appeared to have been working very slowly.
Complainant, according to S-1, essentially indicated that, due to the
three months he was off work, he needed time to readjust. S-1 stated
that she told him she would work with him over the next two weeks.
S-1 denied complainant's assertion that she confronted him in a rude
manner and pulled down his curtailment on May 16, 1995.
Allegation 4
According to complainant, on May 24, 1995, S-1 stood over him and was
rude to him until he finished completing a Vehicle Repair Tag, Form 4565.
Complainant stated that he was then told to go back to his case and was
not provided a copy of the document. Complainant maintained that if he
were White, he would not have been treated in this manner. S-1 denied
that this event occurred.
After a careful review of the record, we find no persuasive evidence
of pretext with respect to allegations 1, 2, 3 and 4. With regard to
allegation 1, we specifically note that the preponderance of the evidence
indicates that S-1 consistently used the dates that were provided on
an employees military orders in order to determine when their military
leave should begin. Although her practice appears to conflict with the
agency's regulation, that when a nonworkday falls at the beginning of the
training period the employee should not be charged leave for that day, S-1
appears to apply this practice in a consistent manner. We also note that,
notwithstanding S-1's testimony, the agency's investigation determined
that the first day complainant was charged military leave was Monday,
June 5, 1995, not his off day, Saturday, June 3, 1995. Therefore, the
agency appears to have complied with its regulation. Finally, we also
find no support for complainant's bare and unsupported assertions that
his race, color, national origin, sex, disability, age or religion played
a role in the actions taken by S-1 regarding allegations 2, 3 and 4.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
__08-29-00________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
3We also note that, as part of his ultimate burden with regard to his
claim of age discrimination, complainant must also show that age was a
determinative factor in the discriminatory actions. LaMontagne v. American
Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984); Phebis
Bowens v. USPS, EEOC Appeal No. 01933155 (July 7, 1994).
4Complainant's initial military orders indicated that he was scheduled
for annual training from June 3, 1995 through June 17. 1995. According
to complainant, these orders were subsequently canceled. The record
contains a copy of his new orders, which were dated August 4, 1995.
These orders indicated that complainant was scheduled for annual
training Monday, August 14, 1995 through Friday, August 18, 1995.
The record also indicates that S-1 approved his military leave request
for this period.
5However, the Employee & Labor Relations Manual, �517.63, states, in
pertinent part, that:
Nonworkdays falling within a period of absence on military leave are
charged against the 15 calendar days of military leave allowed during
the fiscal year, but nonworkdays falling at the beginning and end of
the training period are not charged.
(Emphasis added).
6We note that notwithstanding the above, the investigation report provides
that complainant was initially charged military leave beginning on Monday,
June 5, 1995, his first scheduled work day and that he subsequently
canceled the remainder of his request for military leave. Therefore,
it appears that he was not charged leave for his off day, Saturday,
June 3, 1995.
7Although there is no evidence that complainant was speaking to an EEO
counselor or trying to file a complaint when S-1 told him to hang up the
telephone and return to work, we find S-1's testimony to be troubling.
At the very least, she is creating the impression that she is hostile to
the EEO complaint process. This impression could result in a chilling
effect on her employees' participation in the EEO process.