0120080663
10-14-2009
Charles E. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Charles E. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120080663
Hearing No. 450-2006-00255X
Agency No. 1G-755-0028-05
DECISION
On November 21, 2007, complainant filed an appeal from the agency's
October 31, 2007 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., 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 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge's (AJ) decision, finding that
complainant was not subjected to discrimination based on his race,
disability, or age is supported by substantial evidence in the record.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Custodian at the agency's Dallas Airport Mail Center (AMC)
in Dallas, Texas. Complainant filed an EEO complaint dated November 1,
2005, alleging that he was discriminated against on the bases of race
(African American), disability (Diabetes), and age (52 years old at the
time of the alleged incidents) when: (1) on October 31, 2005, he was
denied upward mobility and position #5-228, at the Dallas Processing
and Distribution Center; and (2) he was subjected to a hostile work
environment.
The agency initially dismissed the complaint, finding that complainant
had abandoned claim (1) by failing to include the claim in his formal
complaint and that he had failed to state a claim regarding his
remaining allegations. Brown v. United States Postal Service, Agency
No. 1G-755-0028-05 (November 17, 2005). On appeal, the Commission found
that complainant had not abandoned claim (1) and that he stated a valid
hostile work environment claim. Brown v. United States Postal Service,
EEOC Appeal No. 01A61098 (May 26, 2006). The Commission remanded the
complaint to the agency for further processing in accordance with 29
C.F.R. � 1614.108. Id.
On remand, at the conclusion of the investigation, complainant was
provided with a copy of the report of investigation and a notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ held a hearing on
August 22, 2007 and issued a decision on October 24, 2007, finding no
discrimination. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in finding no
discrimination. Specifically, he argues that he was subjected to
a hostile work environment and that the AJ "improperly assessed"
the credibility of the management officials' testimony at the hearing.
In response, the agency urges the Commission to affirm its final decision.
The agency argues that complainant failed to establish a prima facie
case of discrimination and that he failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext
for discrimination.
ANALYSIS AND FINDINGS
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Disparate Treatment - Claim (1)
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department 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 pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case
of discrimination based on race, disability, and age, we find that
the agency articulated legitimate, nondiscriminatory reasons for its
actions.1 A supervisory maintenance official, the selecting official
(SO), testified at the hearing that complainant was not selected for
the Supervisor of Maintenance Operations position, Vacancy Announcement
No. 5-228, because a maintenance supervisor from a different facility
was granted a noncompetitive reassignment into the position. The SO
stated that the maintenance supervisor requested a reassignment after
the Vacancy Announcement was issued, and the SO's decision to grant the
reassignment halted the selection process. The SO further stated that
he neither received copies of the applications from human resources nor
reviewed complainant's application because the position was filled via
the reassignment.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we find that the AJ's determination that
complainant failed to establish pretext is supported by substantial
evidence in the record. We find no evidence that the agency's actions
were motivated by discriminatory animus towards his protected classes.
Although complainant argued that the SO was influenced by other management
officials not to select him for the position, the SO testified that he
did not know complainant had applied for the position, and there is no
evidence in the record refuting the SO's testimony.
Hostile Work Environment - Claim (2)
Complainant argued that he was subjected to a hostile work environment
when, on September 12, 2005, the Maintenance Supervisor told him he
was "sick of all the niggers and the 204-Bs that the [agency] had;"
on September 15, 2005 the Maintenance Manager made a comment saying
"people with a disability or military background will never be hired by
him;" on October 7, 2005, the Plant Manager called several employees
"Black crows;" and, on October 31, 2005, he was not selected for the
Supervisor of Maintenance Operations position.
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). To establish a prima facie case of harassment, complainant must
show that: (1) he is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) he was subjected to unwelcome
verbal or physical conduct related to his membership in that class
and/or his prior EEO activity; (3) the harassment complained of was
based on his membership in that class and/or his prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review, we concur with the AJ's determination that complainant failed
to establish a prima facie case of harassment. Although the Maintenance
Supervisor's September 12, 2005 alleged statement, if true, could be
sufficiently severe to state a claim of discriminatory harassment,
complainant failed to introduce sufficient evidence to establish that
the Maintenance Supervisor made the statement. The record reflects that
the Maintenance Supervisor was not at work on September 12, 2005, or any
other day that week, and he denied making the statement at the hearing.
Complainant reiterated at the hearing that the statement was made on
September 12, 2005, but he was unable to explain how this event occurred
when the agency's time and attendance records in the investigative file
reflect that the Maintenance Supervisor was out on sick leave that day.
Complainant's testimony is further placed into question because he
provided different accounts of the context in which the statement was
allegedly made. In his affidavit, complainant stated that the Maintenance
Supervisor made the statement after complainant had asked the Maintenance
Supervisor whether he would be given a 204-B position in the Maintenance
Department. However, at the hearing, complainant testified that he did
not speak to the Maintenance Supervisor that morning, and that he stopped
complainant near a doorway to make the statement. We find support for
the AJ's determination that the record "provides adequate proof that
the event alleged more likely than not did not occur."
With respect to complainant's remaining allegations, we find that
complainant failed to provide sufficient evidence in the record to show
that the incidents he cites are sufficiently severe or pervasive to
create a hostile work environment. The Maintenance Manager testified at
the hearing that he did not state that he would never hire an individual
with a disability or military background on September 15, 2005. He noted
that he has hired people with military backgrounds and disabilities in
the past, including complainant. Regarding the October 7, 2005 incident,
the Plant Manager submitted a statement into the record indicating that
he saw several employees sitting on a railing and stated that they were
"lined up like crows on a telephone wire." The Plant Manager noted that
complainant was not present when he made the statement, denied that
his statement was racially motivated, and stated that he apologized
after learning that some employees were offended by his statement.
As discussed above, the SO stated that complainant was not selected
for the Supervisor of Maintenance Operations position because it was
filled via a noncompetitive reassignment. Although complainant disputed
the testimony provided by agency officials at the hearing, we find no
evidence in the record that undermines the testimony provided by the
management officials. In viewing these remaining allegations as a whole,
we find that complainant has not established these incidents had the
purpose or effect of unreasonably interfering with his work performance
and/or creating a hostile work environment.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
factual findings are supported by substantial evidence in the record.
We discern no basis to disturb the AJ's decision. Accordingly, after
a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in the
decision, the agency's final order is AFFIRMED.
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
_________10/14/09_________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120080663
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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