0120143004
10-11-2016
Dan H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dan H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120143004
Hearing No. 560-2013-00027X
Agency No. 4E640012110
DECISION
On August 25, 2014, Complainant filed an appeal from the Agency's July 30, 2014, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registry Clerk at the Agency's Gene Taylor Main Post Office Processing and Distribution Center facility in Springfield Missouri.
On January 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Christian, non-denominational) and reprisal for filing union grievances when:
1. From November 2000 through the present management has refused to follow guidelines for the Registry Cage resulting in the Complainant not being properly compensated;
2. Since September 22, 2009, Complainant has been subjected to a hostile work environment.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment on February 26, 2014 and the AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on July 25, 2014. The AJ specifically found that Complainant failed to allege a prima facie claim of reprisal because he alleged reprisal was based on prior union grievances that contained no allegation of discrimination. The AJ further found that Complainant failed to establish a prima facie claim of discrimination based on religion with respect to claim 1 because he failed to show that other similarly situated employees outside of his protected basis were treated differently. Finally, the AJ found that Complainant failed to show that the actions complained of were sufficiently severe or pervasive to constitute harassment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
To prevail in a disparate treatment claim such as this, 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 Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
In order to establish a prima facie case, a complainant may show that he is a member of a protected class, that he was subjected to adverse treatment, and that he was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). The AJ found that Complainant failed to establish a prima facie case "because he failed to establish any comparators or any other evidence that may give rise to an inference of discrimination." AJ's Decision, p. 17. In his Formal Complaint, Complainant alleges that management has not followed "postal rules and regulations" but he does not specify how he was treated differently than similarly situated workers outside of his protected bases. See Report of Investigation, (ROI), Affidavit A. Instead Complainant averred that "the other register clerks are also not receiving the pay scale commensurate with the responsibilities while handling High Value mail described in [Agency regulations]," id., p. 41, and further identified six clerks as well as "all the clerks assigned to the unit without a bid position have not received higher level pay. All previous register clerks back to 6/26/2000 when grieved or when the grievance was settled have not received higher level pay." Id., p. 24. Such an argument does not support a claim that he was treated differently than others.
Furthermore, when asked how he was discriminated based on his religion, Complainant essentially denied that he was, claiming instead that "the actions the management officials named, and that have chosen to avoid being responsible for addressing this issue in the correct procedural way has been done so for personal gain, or fear of reprisal from their superiors," id., p.38, which does not support the claim that he was singled out for adverse treatment based on his religion. When asked "[w]hy do you believe you have been discriminated against based on your religion?" he averred that "[t]o intentionally deprive a person of what is rightfully due is a direct violation of my principle religious beliefs. To go beyond the initial deprivation of what is due, and continue with false witness against me compounds the attack on my beliefs," id., p. 38-39 which again does not support the argument that he was treated differently than others based on his religion. Instead, Complainant appears to be arguing that his religious convictions inspired him to pursue a claim to rectify what he perceives to be an injustice. Such an argument is not the same thing as arguing that he was treated differently because of his religion.
When asked how he was discriminated against based on reprisal, Complainant averred that "[t]he type of retaliation has been directly related to grievance filing and not a previous EEO." Id., p.3. Furthermore, Complainant averred that he did not know if management was aware of whether or not he had engaged in any prior EEO activity, see id, and that "[a]t no time did I indicate that this was related to a prior EEO even though I did file one approximately 20 years ago. The evidence verifies that the hostilities toward me were taken after filing a grievance notifying management of the violation of regulations." Id., p. 39.
In his Formal Complaint, Complainant explains his complaint as follows:
The discrimination that goes against my religious belief, is not one based on an objection that I have for regulation, imposing a requirement of me to perform some duty in violation of my belief (United States v Seger)[sic]. The discrimination is the willful intent to cause me harm or threats of potential harm in avoidance of adhering to the postal regulations required by doctrine. The postal rules and regulations are not subjective to the individual discretion postal management at the Springfield, MO post office has used. The interpretation of the rules is easily understood by any reasonable person, and contain the protections afforded me by regulation.
Complainant appears to be attempting to shoehorn a non-discrimination dispute he has with Agency management into an EEO complaint. We therefore find that the AJ's finding that Complainant failed to establish a prima facie case of discrimination or reprisal to be supported by substantial evidence.
Hostile Work Environment
Complainant alleged the following incidents occurred: allegations have been fabricated against him; his email account was taken away: he was verbally assaulted; he was placed under investigation; he was threatened with suspension and dismissal; he was subjected to numerous forms of discipline; and he was continuously required to prove his innocence.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record we find that Complainant has not shown that the alleged treatment either involved or was based on his religion, or in retaliation for his participation in EEO activity. As noted above, Complainant appears to have had a longstanding dispute with management and, by his account, he incurred adverse treatment from management as a result. However, Complainant has not established that he was subjected to a hostile work environment based on religion and/or in retaliation for engaging in EEO activity. The AJ found that "Complainant has failed to demonstrate that there was anything discriminatory about the alleged incidents" and we discern no basis to disturb the AJ's finding in this regard.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing that discrimination occurred, and we AFFIRM the final order.
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
October 11, 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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