0120151903
03-18-2016
Demarcus I.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Demarcus I.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120151903
Agency No. 1C-145-0017-14
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's April 1, 2015 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency's Northwest Rochester Processing and Distribution Center in Rochester, New York.
On September 18, 2014, Complainant filed a formal EEO complaint alleging he was subjected to disparate treatment and/or discriminatory harassment on the bases of race (African-American/Hispanic/Caucasian), color, national origin, sex, disability and/or reprisal for prior EEO activity when:
1. management did not made a pay adjustment for the period of June 18, 2011 - July 1, 2011;
2. in February 2013, management did not properly investigate his claim of being harassed by a co-worker;
3. on August 14, 2013, September 26, 2013, October 13, 2013, November 27, 2013, and March 13, 14 and 19, 2014, management changed his hours in the Enterprise Resource Management System (ERMS) which resulted in a loss of income;
4. on October 10, 2013, his manager denied his request for a Change of Schedule (COS) as an accommodation for therapy sessions;
5. on April 2, 2014, his tour start was not input resulting in a loss of income; and
6. on May 2, 2014, he was issued a 7-Day Suspension for Absence Without Official Leave (AWOL)/Failure to be Regular in Attendance.
After the investigation,2 Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On April 1, 2015, the Agency issued the instant final decision, finding no discrimination. With regard to Complainant's disparate treatment claims, the Agency found that Complainant did not establish a prima facie case of race, national origin, sex, color, disability, and reprisal discrimination. The Agency further found that assuming arguendo Complainant established a prima face case of race, national origin, sex, color, disability, and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
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, sex, color, disability, and retaliation. Moreover, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed. Complainant makes no new contentions on appeal.
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.3 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.
With respect to claim 1, Complainant alleged that on numerous occasions, he alerted management to several pay discrepancies that required a pay adjustment. Complainant stated that he was still awaiting a pay adjustment for Pay Period 14, Week 1 which included 8 hours at the overtime rate and 1.5 hours of Sunday premium. Complainant also alleged that for Pay Period 14, Week 2, he was due 0.11 hours of overtime and 4.5 hours of Sunday premium.
The Supervisor, Distribution Operations, also Complainant's supervisor, acknowledged that he did not make the pay adjustment based on Complainant's on-the-job injury. Specifically, the supervisor stated that Complainant "did not report this to me until 5 days after the alleged injury occurred. I told him I would not sign any documentation related to this claim based on his delay in reporting it. I was not willing to back date the paper work as he requested." The supervisor further stated that he did not believe a pay adjustment "is due based on Complainant's delay in reporting the alleged circumstances upon which the adjustment would have been based." The supervisor stated that Complainant may have asked another management official concerning the pay adjustment after he swapped tours.
Further, the supervisor stated "there are guidelines related to addressing on-the-job injuries which require a supervisor to immediately investigate the report and, if warranted, get authorization to process a pay adjustment." The supervisor stated that he did not discriminate against Complainant based on his race, national origin, sex, color, disability, and prior protected activity.
Regarding claim 2, the Supervisor, Maintenance Operations stated that he recalled Complainant telling him that he needed to talk to him concerning derogatory and vulgar statements made by the co-worker. The Supervisor, Maintenance Operations stated that because Complainant did not provide details, he brought Complainant and co-worker "into my office and had each of them write a statement and I spoke to witnesses. I was not able to verify what happened or what either said. The witnesses basically stated that they could not hear what was said because of the machines. So it amounted to a 'he say, she say' type of scenario. I called each into my office separately after I completed my investigation. I explained to Complainant that I could not verify any details and that I would turn it over to the MDO [Manager, Distribution Operations] and let her decide. The MDO at that time was [named individual]. I do not know what was decided and she is no longer in that position. I spoke to [co-worker] and told her that [if] anything had occurred, which I could not verify, she should stay away from the complainant and behave. [Co-worker] denied that she called complainant any names."
Regarding claim 3, the supervisor stated that any supervisor can go into ERMS and correct clock rings. The supervisor further stated "I can confirm that I put in for Complainant to receive a Full Day LWOP [Leave Without Pay] on October 13, 2013. Complainant called in that day and did not have sick leave or AL [Annual Leave] to cover the absence."
The Manager, Distribution Operations (Manager) stated that on August 13, 2013, he entered a total of 8 hours LWOP for Complainant for three days that week, including August 14, 2013. The Manager stated as for September 26, 2013, Complainant "did not work a full day. [Management official] and [management official] removed higher level pay because complainant did not work any; deleted AWOL entry; entered clock rings and BT [Begin Tour]; deleted a move ring and entered LWOP hours."
The Manager stated that on October 13, 2013, a management official entered 8 hours of LWOP and corrected clock ring errors. As for November 27, 2013, another management official entered LWOP "which Complainant called in for that date."
The Manager stated that during mediation, Complainant stated that he believed his pay was incorrect for March 13, 14 and 19, 2014. As a result, the Manager stated that for Pay Period 7, week 1, which included March 13 and 14, 2014, he submitted a PS Form 2240 "to change pay from 40 hours FULL DAY LWOP to 12.00 Annual Leave, 24.00 FULL DAY LWOP and 4.00 PART DAY LWOP. For Pay Period 07-02, which included March 19, 2014, I submitted a PS Form 2240 to change pay from 40 hours FULL DAY LWOP to 12.00 Annual Leave, 24.00 FULL DAY LWOP and 4.00 PART DAY LWOP [emphasis in its original]."
Regarding claim 4, the Manager denied Complainant's claim that on October 10, 2013, he had a conversation with the Manager regarding his physical therapy schedule and requested a Change of Schedule and reasonable accommodation which he denied. Specifically, the Manager stated "I do not recall denying such a request; nor would I have denied a request for this reason. Complainant's shift started at 6:00pm, so there should not have been any reason he couldn't have gone to his physical therapy sessions."
Regarding claim 5, Complainant alleged that he submitted a PS Form 1260 with Begin Tour for April 2, 2014 and that the Manager admitted to Complainant on April 6, 2014 that he did not enter the PS Form 1260, and refused to do so. The Manager stated that Complainant asked a named supervisor to sign a PS Form 1260. However, that supervisor "refused to do so because he could not verify Complainant's Begin Tour time for April 2, 2014 and "was not willing to base his signature on the BT time Complainant provided. I asked [another supervisor] to ask Complainant was his BT time for April 2nd and Complainant told [supervisor] he was going to tell him. [Supervisor] asked Complainant at least twice for this information. I then went to Complainant and asked for his BT time. [Complainant] refused to provide a time. As a consequence, Complainant's BT time was based on his first live clock ring, and he was paid for 4.71 hours on that date." The Manager stated that he does not recall receiving a completed Form 1260 and was unable to locate one.
Regarding claim 6, the Operations Support Specialist (Specialist) was the deciding official to issue Complainant a 7-Day Suspension for failure to be regular in attendance and AWOL. The Specialist stated that on April 4, 2014, Complainant met with her, the Plant Manager and union president to discuss his light duty case. As a result of the meeting, it was agreed that Complainant would work 6 hours each day, 5 times a week. The Specialist stated that she prepared a letter following the meeting based on what was agreed. The Specialist also stated that Complainant gave two 3971 slips to the Plant Manager for a scheduled week of vacation and the other was to be off from work on April 9, 10 and 11, 2014.
Further, the Specialist stated that Complainant was scheduled to work the evening of April 4, 2014 at 6:00 p.m. and "I wanted to provide him a copy of that letter. The Plant Manager denied the 3971 for April 9, 10 and 11. I approved the 3971 for the week's vacation. When Complainant reported for work that same evening (April 4th), I gave him the two 3971's, indicating the week of vacation was approved, but the 3971 for April 9-11th had been denied. I also gave Complainant a copy of the letter documenting what had been agreed to in the meeting earlier that day."
The Specialist stated, however, Complainant did not report to work on April 9, 10 or 11, 2014 and "did not call to report that he would not be at work any of those days. He then took his vacation time and called in (absent) on April 20th and 21st." The Specialist stated that as a result, Complainant was disciplined because he "admitted that he did not have a signed 3971 approving his absence for April 9-11, 2014. He told me that he was not asking for that time off, but was informing us he would be off." The Specialist stated that Complainant's race, national origin, sex, color, disability, and prior protected activity were not factors in her decision to issue him a 7-Day Suspension.
The Manager stated that he was the concurring official concerning Complainant's 7-Day Suspension. The Manager stated that based on the facts gathered by the Specialist and the information the Plant Manager provided "confirming those facts, I believe the disciplinary action was warranted." For instance, the Manager stated "I viewed this situation as very different in that Complainant planned to be AWOL and pretty much told management he would not be reporting to work even after the request for leave was denied. I do not recall any other instance when an employee has planned to be AWOL as Complainant did in this situation."
Further, the Manager stated that Section 665 of the Employee and Labor Relations Manual "requires employees to be regular in attendance and states that being absent without leave is grounds for disciplinary action."
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, sex, color, disability, and retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, for the same reasons explained above, the evidence simply does not establish that the incidents alleged by Complainant occurred because of his race, national origin, sex, color, disability, and retaliation.
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 (M0815)
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, 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 (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
March 18, 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 The record reflects that Complainant did not submit an affidavit to the investigator.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability
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