0120142880
06-28-2016
Danillo T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Danillo T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120142880
Agency No. 4J-600-0046-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 14, 2014 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Bloomingdale, Illinois Post Office.
On April 23, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (Asian), national origin (East Indian), and in reprisal for prior EEO activity when ongoing since on or about March 25, 2009, he has been subjected to discriminatory harassment, including but not limited to:2
1. not allowed to work more than eight hours;
2. his requests for Form 3996 were refused and his Form 3996 was thrown in the trash;
3. subjected to profanity, racist comments, insults, rude comments, and made fun of; others are allowed to harass him;
4. the Postmaster wanted him to rethink his decision about filing an EEO complaint; and threatened to take him to the office.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on November 18, 2010, pursuant to 29 C.F.R. � 1614.110(b).
In its November 18, 2010 final decision, the Agency found no discrimination concerning claims 1 - 4. On appeal, the Commission vacated the Agency's decision and remanded the matter to the Agency for a supplemental investigation concerning Complainant's harassment claim. Joseph v. United States Postal Service, EEOC Appeal No. 0120111308 (March 14, 2014).
Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
On August 14, 2014, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, national origin, and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, national origin, and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Postmaster stated that in regard to claim 1, carriers are not allowed to set their own schedules and through the management function, overtime is decided based on upon workload and must be approved in advance. The Postmaster stated that Complainant "does not have an entitlement to work overtime when he wishes, without this being questioned. The act of questioning unauthorized overtime is not an example of discriminatory harassment but rather sound management practices...in periods of declining mail volume, less overtime is authorized for a carriers but due to peak mail periods, days after holidays etc., some overtime will be authorized to carriers, including the claimant. Prior to my arrival, it appears that [Complainant] and other carriers for years worked overtime when they wished and usually claimed that they could not finish their routes on time."
Furthermore, the Postmaster stated that the overtime record reflects that Complainant "was authorized overtime for many days. On some days he was denied overtime and there have been some issues about his productivity and office and street performance. He has been questioned and counseled regarding these deficiencies and does not like it."
Regarding claim 2, the Postmaster stated that requests for overtime on an employee's route are usually oral and management's refusals are also oral. The Postmaster further stated "if I have already informed the claimant that he is not to work overtime, curtail bulk mail, leave on time and return on time and he continues to argue and then starts filling out forms with the identical request. This is a wasting time since the answer was already given. Filing out a form is not going to change the answer."
Regarding claim 3, Complainant alleged that on unspecified dates, his co-workers made racial comments to him, such as he drank camel milk, and that he was too lazy. The record contains copies of Complainant's co-workers and Agency management's supplemental affidavits. Four co-workers denied making statements that Complainant drank camel milk or anything similar. Moreover, the record reflects that two other co-workers stated they did not hear anyone making statements that Complainant drinking camel milk but heard that Complainant was lazy.
The record reflects that the Postmaster, the Supervisor Distribution Operations and Complainant's supervisor stated that they were not aware of Complainant's harassment claim. For instance, the Postmaster stated that during the relevant period, he "did not hear, was not told of any racial or derogatory comments made to our about Complainant."
The Supervisor Distribution Operations stated that in regard to Complainant's harassment claim, since March of 2009, he did not recall any window clerk or carrier stating that Complainant was too lazy or that they made any other ethnically offensive statements as identified by Complainant, such as Indian husbands stay at home. The Supervisor Distribution Operations also state that he does not remember either Complainant or anyone else telling him of such statements being made.
Regarding claim 4, the Postmaster stated that in 2007, Complainant was considering filing an EEO complaint concerning the improper treatment by a named co-worker. The Postmaster stated at that time, he merely asked Complainant to give him (the Postmaster) with an opportunity to remedy the situation. The Postmaster further stated "after investigating the situation and warning [Co-worker 1] of zero tolerance and issuing my policies. I informed [Complainant] of what I had done and asked that he bring any other inquiries to my attention. [Complainant] dropped the EEO complaint back then, I assumed because the situation was remedied."
With respect to Complainant's allegation that the Postmaster threatened to take him to his office, the Postmaster stated "I don't understand how asking someone to come into my office after the person sent me a letter requesting my help is considered a threat? We met several times in my office to discuss his concerns."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected bases -- in this case, race, national origin, and retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of his race, national origin, and prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
June 28, 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.
2 For ease of reference, the Commission has numbered Complainant's claims as claims 1 - 4.
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