Charles E. Brown, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionOct 14, 2009
0120080663 (E.E.O.C. Oct. 14, 2009)

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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Office of Federal Operations

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