0120142179
05-24-2016
Cedrick S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cedrick S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120142179
Hearing No. 520-2013-00159X
Agency No. 4B-020-0058-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 25, 2015 final action 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.
BACKGROUND
During the period at issue, Complainant worked as a full-time Carrier Technician at the Agency's North Weymouth, Massachusetts Post Office.
On July 23, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the basis of reprisal for prior EEO activity when:
1. on March 27, 2012, his manager accused him of previously bullying and verbally threatening her;
2. on April 10, 2012, he was given a direct order to get into his manager's personal vehicle despite his objections;
3. on April 11, 2012, his manager badmouthed him to his fellow employees;
4. on May 30, 2012, he was charged eight hours of Leave Without Pay (LWOP) rather than the sick leave that he requested; and
5. on May 30, 2012, he received a letter informing him that he was being excessed from his position and reassigned to the Somerville Carrier Station effective June 2, 2012.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On March 31, 2013, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. The AJ noted that in regard to claim 1, Complainant and the Manager, Customer Service, also Complainant's second level supervisor, were in a Pre-Disciplinary meeting for another employee in which Complainant was representing the other employee as a union representative. The Manager asked that another manager be present as a witness because she was uncomfortable because of Complainant's behavior in a meeting she had with him in January 2012 in which he raised his voice towards her.
The Manager stated that she explained to Complainant why she asked another manager to be present as a witness because "there was an incident in the past (January 2012) when he bullied and got into my personal space." The Manager further stated that the Pre-Disciplinary meeting was completed "without incident."
Regarding claim 2, the AJ noted that on April 10, 2012, Complainant's postal vehicle broke down. Complainant called the post office to report the problem to the Manager. The Manager drove to Complainant's location in her Personally Owned Vehicle (POV) to pick him up and transport him back to the post office. Complainant asked the Manager to pick him up in a postal vehicle rather than a POV "because of instance issues and coverage using a POV." Complainant claimed that the Manager refused to show him proof of instance and directed him to get into the POV.
The Manager stated that she drove her personal vehicle to pick Complainant up "after he called into the office reporting his postal vehicle was disabled. I advised him that I would provide him a ride back to the office because there was no other employee available...he was reluctant to get into my vehicle, but did. There was no direct order given by me. He questioned whether I was insured or a good driver."
Regarding claim 3, the Manager stated that on April 11, 2012, Complainant called her two times to report carriers not performing their jobs properly. The Manager stated that she took the necessary steps to investigate Complainant's claims and corrected the carriers' performance. The Manager stated "when asked, I did tell the carriers that I had several complaints about carriers not performing their job correctly and working in an unsafe manner, so I had to come out to investigate. They carriers asked who called to complaint and I told them it was the Complainant."
Regarding claim 4, Complainant claimed that on May 30, 2012, he called in for eight hours of sick leave. The record reflects that on June 1, 2012, a supervisor entered Complainant's time as eight hours of LWOP in the Time and Attendance Control System. The Manager stated that Complainant "was mistakenly charged 8.00 of LWOP hours instead of 8.00 sick leave hours...on July 6, 2012, a pay adjustment was submitted changing the LWOP to Sick Leave. I made the pay adjustment even though I was not involved in Complainant being charged LWOP instead of Sick Leave on May 30, 2012. Since then, he has been paid."
Regarding claim 5, the AJ noted that Complainant was the most junior employee in the section at the time of his reassignment to the Somerville Carrier Station. The AJ noted that according to the Agency, the Collective Bargaining Agreement applicable to Complainant states in the relevant part "Full-time employees, excess to the needs of a section, starting with that employee who is junior in the same craft or occupational group and in the same level assigned in that section, shall be reassigned outside the section but within the same craft or occupational group. They shall retain their seniority and may bid on any existing vacancies for which they are eligible to bid. If they do not bid, they may be assigned in any vacant duty assignment for which there was no senior bidder in the same craft and installation. Their preference is to be considered if more than one such assignment is available."
The Manager stated that Complainant was first informed through a letter dated May 18, 2012 by the Manager, Operations Programs Support, "that he was being reassigned to the Somerville Post Office effective May 26, 2012. That letter was rescinded on May 22, 2012. Then on May 23, 2012, Complainant was informed that he was being excessed to the needs of the section (North Weymouth Post Office) because he was the junior utility carrier. Because he was now an unassigned full time employee, he was reassigned to the Somerville Carrier Station, effective June 2, 2012. This was in accordance to the National Agreement."
Further, the Manager stated that Complainant was excessed "due to the needs of the section because [carrier's] T-6 route was abolished. Complainant was junior in seniority to [carrier], therefore, he was excessed and reassigned to Somerville."
Based on these facts, the AJ concluded that the evidence of record did not establish that Complainant was subjected to harassment based on retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The Agency fully implemented the AJ's decision in its final action. Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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 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 Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on the basis of retaliation.
The Agency's final action implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
May 24, 2016
__________________
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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