0120121343
07-26-2012
Curtis W. Evans, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Curtis W. Evans,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121343
Agency No. 4G-752-0280-11
DECISION
On February 1, 2012, Complainant filed a timely appeal from the Agency's January 9, 2012, 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 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issue presented is whether the Agency's finding of no retaliation or discrimination is supported by substantial evidence in the record.
BACKGROUND
Complainant worked as a Body and Fender Repairman at the Agency's Dallas Vehicle Maintenance Facility in Dallas, Texas.
On August 10, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (physical (knee) and mental disability (Post Traumatic Stress Disorder (PTSD)), age (60), and reprisal for prior protected EEO activity under Title VII when a manager issued Complainant a Letter of Warning on July 29, 2011.
The record discloses the following pertinent information.
Complainant identified three managers as responsible for issuing him the subject Letter of Warning: (1) his immediate supervisor (S1); (2) the Supervisor of Vehicle Maintenance (S2) (EAS-17), who was the signatory to the disciplinary action; and (3) the Manager, Vehicle Administration (S3) EAS-23, who concurred in the issuance.
Complainant reports to the Supervisor (S1) EAS-17, who is an Hispanic male. S1 acknowledges that he is aware of Complainant's prior EEO activity and his medical conditions.
Complainant has filed three prior EEO complaints which named his immediate supervisor and the facility manager, who are named in this complaint. Complainant is a union steward and former president of the union.
In addition, the record shows that the Agency has a policy requiring that a log of union activity. The Manager, Postal Vehicles Services (S3) sent an official notification to the APWU stewards regarding requests for union time. Upon requesting any union time, all union stewards were required to make a clock move to reflect union time.
On June 6, 2011, Complainant wrote to the Dallas District Management alleging that he was being threatened and harassed by the Vehicle Maintenance - EAS-17 (S2).
On July 18, 2011, Complainant submitted a Request for Information and Documentation Relative to Processing a Grievance, dated July 18, 2011 However, Complainant did not sign the log reflecting his union time. Information in the record indicates that Complainant previously used the log.
The record references a pre-disciplinary interview (PDI) of Complainant that occurred on July 27, 2011 regarding the July 18, 2011 request. The PDI report indicates that Complainant gave "No Response" to the questions asked of Complainant. A final notation states, "All during the Pre-D Interview [Complainant] was laughing and snoring."
On July 29, 2011, S2 issued Complainant a Letter of Warning, stating that C failed to make proper clock rings and to document his time in the union steward log book, as instructed.
In her affidavit, the deciding official(S2) stated "Documentation (The Grievance Log) is necessary for accountability. The Manager, Vehicle Maintenance, EAS-23 (S3) affirmed that he was the concurring official to the LOW. S3 averred that he relied on the documents provided by S2, showing that Complainant failed to follow instructions to make proper clock rings and to document his time in the union steward log book.
Thereafter, Complainant contacted an EEO Counselor alleging that he was being retaliated against because he sent the June 6, 2011 letter. Complainant identified comparison employees whom he states were not subjected to disciplinary action for the same infraction. Specifically, Complainant identified the current President of the Union who does not have any known prior EEO activity. The record shows that all union officials are supposed to sign a log book, including the President of the Union.
The record further reflects that two of the three named officials are of the same race as Complainant. S2 and S3 are African-American. S-1 is Hispanic. The record also shows that one comparison employees who he had been issued a Letter of Warning was Caucasian.
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 EEOC 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).
Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that Complainant was not similarly situated to the Caucasian or younger individuals who were not disciplined and that Complainant had not provided evidence sufficient to draw an inference of discrimination.
With regard to retaliation, the Agency found that Complainant failed to establish a prima facie case of retaliation in that he failed to show there was a nexus. The Agency also concluded that Complainant has not met his obligation to show that he is a person with a disability within the meaning of the Rehabilitation Act of 1973.
Then, the Agency stated that, even assuming that Complainant established a prima facie case, management has articulated a legitimate, nondiscriminatory explanation. The recommending official attested that Complainant failed to make proper clock rings and utilize the union steward log time book, as instructed. The Agency relied on the affidavit of the issuing official who declared that the rule applied to all employees (ROI, Aff. B, p. 13).
The FAD acknowledged that on June 6, 2011, Complainant accused S2 of threatening him and that he expressed concern about his health and stated that because of his condition of Posttraumatic Stress disorder that he could not continue to work with S2. The FAD also acknowledged that C has physical and mental impairments, but the Agency stated that Complainant had not provided documentation demonstrating how his knee injury and stress disorder impacted his major life activities. The Agency stated that it "was not persuaded that management's actions were motivated by discrimination." The Agency concluded that there was nothing that showed by a preponderance of the evidence that the legitimate explanations given by the agency were pretexts for discrimination or retaliation.
CONTENTIONS ON APPEAL
Complainant did not submit a brief. The Agency requests that the decision be affirmed.
ANALYSIS
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. (November 9, 1999) (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").
We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Mannon v.United States Postal Service (Western Area), EEOC Appeal No. 0720070074 (April 4, 2012), citing EEOC Management Directive 110. Because Complainant does not address the Agency's findings with regard to his race, color, sex, or age discrimination, we decline to address those claims in this decision.
We now turn to the one matter raised by Complainant on appeal. Specifically, Complainant argues that the record supports his claim that the Agency issued the Letter of Warning as an act of retaliation after he wrote the June 6, 2010 letter referencing his medical conditions and after he voiced opposition to practices that he considered to be discriminatory, in his individual capacity and as a union steward.
To prevail in a disparate treatment claim, Complainant must 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).
Complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. See Watkins v. United States Postal Service, EEOC Appeal No. 0120092749 (June 29, 2012). Specifically, in a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't. of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Complainant clearly was asserting that his most recent activity was on June 6, 2011, when he wrote the letter accusing S2 of harassment and seeking not to be under her supervision due to his medical condition. This occurred in close proximity to the issuance of the July 29, 2011 Letter of Warning. For purposes of our analysis, we find that Complainant established the elements of his prima facie retaliation claim. Generally, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983).
We find, however, that the Agency articulated a legitimate, nondiscriminatory reason for issuing the Letter of Warning in this case. S2 testified that all employees were required to sign in. Our reading of the Agency's policy shows that it was necessary for the stewards to clock in or out. Complainant failed to log in, as directed. Other than Complainant's bare assertions that others did not have to sign in, the record does not include any statements from other union officials stating that they did not have to log in. Rather, the record has affidavits from management showing that other units also had to sign into the log books reflecting union time.
To ultimately prevail, Complainant must prove, by preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Complainant did not meet this burden of proof.
Finally, in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vincent, 477 U.S. 57, 67 (1986), that harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. Whether the harassment is sufficiently severe to trigger a violation of Title VII or the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23..
For all of these reasons, we find that the record supports the Agency's determination of no reprisal or discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (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 (Z0610)
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
July 26, 2012
__________________
Date
2
0120121343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121343