0120081008
07-16-2009
Derick M. Hite,
Complainant,
v.
John. E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081008
Hearing No. 430-2007-00262X
Agency No. 1K-281-0004-07
DECISION
On December 17, 2007, complainant filed an appeal from the agency's
November 8, 2007 final action 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
At the time of events giving rise to this complaint, complainant worked as
a Custodian at the agency's work facility in Charlotte, North Carolina.
On December 18, 2006, complainant filed an EEO complaint wherein he
claimed that he was subjected to discriminatory harassment on the bases
of his race (Black), sex (male), color (black), and in reprisal for his
previous EEO activity under Title VII when:
1. On July 14, 2006, a coworker carried a Black doll in his pocket and
referred to it as "Nigger Hite".
2. On October 14, 2006, complainant's group leader job was abolished.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing and the matter was set for hearing. The agency filed a Motion
for a Decision Without a Hearing. Complainant did not file a response.
A Pre-hearing Conference was held on September 19, 2007. A Pre-Hearing
Report was to be submitted by noon on September 18, 2007, but complainant
failed to submit a Report. The AJ dismissed the hearing request on
the grounds that complainant failed to respond to an order of the AJ.
The AJ remanded the complaint to the agency, and the agency issued a
final action pursuant to 29 C.F.R. � 1614.110(b).
The agency determined that complainant failed to prove that he was
subjected to discrimination as alleged with regard to each claim.
As for claim (1), the agency determined that the alleged actions of
the White coworker were investigated by management and could not be
substantiated. The agency further determined that even if the incident
regarding the Black doll occurred, management took appropriate action
by informing the White coworker that this type of alleged behavior
would not be tolerated by the agency and that he would not be allowed
to return to his 204B duties until after an investigation was completed.
The agency noted that subsequent to the original investigation, another
agency official completed an investigation that also showed that no
wrongdoing occurred. With regard to complainant's group leader duties
being abolished, the agency stated that this occurred based upon the
needs of the agency and discussions over this possible abolishment
began months before the alleged incident concerning the White coworker.
The agency determined with regard to both claims that complainant failed
to submit evidence to establish that the agency's articulated explanations
were not the true reasons for its actions.
On appeal, complainant requests a hearing. Complainant argues that
he would have presented three witnesses who would have testified that
the White coworker stated "Where is your doll?" and "Everyone should
own one." In support of his position, complainant submits a statement
from a coworker who maintains that the White coworker stated that
complainant is an idiot and that he is not doing anything he says.
This employee further stated that the White coworker carried in his
pocket a small figure of a Black man who he referred to as his friend.
A statement from another coworker referenced the small Black doll and
the White coworker stating that everyone should own one. An additional
coworker submits a statement wherein she claims that the White coworker
showed her a little Black figure he keeps in his pocket. She states
that he said "Don't you have one too?" Another coworker provides a
statement wherein he states the Supervisor told him that the doll was
not intended to mock him but rather complainant.
In response, the agency asserts that complainant failed to establish a
prima facie case of discrimination for each basis with regard to each
claim. The agency points out that complainant had the only remaining
group leader position left at the facility. The agency notes that after
this position was eliminated, complainant received the same level of pay
that he received as a group leader. The agency asserts that there are no
custodial employees who were similarly situated to complainant and there
were no similarly situated employees who received preferential treatment.
With regard to complainant's claim of reprisal, the agency states that
complainant reported the incident concerning the doll on July 14, 2006,
and the group leader job was not abolished until October 4, 2006. The
agency argues that a retaliatory motive may not be inferred since the
elimination of the group leader position occurred almost three months
later. The agency further argues that complainant cannot establish a
prima facie case of a hostile work environment. According to the agency,
complainant did not hear firsthand whether the White coworker made the
doll statement. The agency notes that the doll incident and the group
leader position are the only legitimate events that complainant claims
created a hostile work environment.
The agency asserts that it took immediate and appropriate corrective
action in response to complainant's claim against the White coworker.
The agency states that the Supervisor interviewed other employees
and the relevant White coworker; and the Labor Relations Specialist
interviewed custodial employees. According to the agency, the White
coworker received a warning despite the fact there was no corroboration
for complainant's allegations. The agency asserts that it articulated
legitimate, nondiscriminatory reasons for its elimination of the group
leader position. The agency states that there is no reason for a group
leader position in the custodial department as complainant's group leader
job was the only such position left in the entire facility and it did not
serve an essential purpose. The agency maintains that complainant is not
able to produce any evidence of pretext or unlawful discrimination showing
that the group leader job was eliminated based on the protected bases.
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). He
must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since 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,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a claim of harassment, complainant must show that: (1) she
is a member of the statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should 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). Further, the incidents must have been "sufficiently severe
and 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., 23 U.S. 75 (1998).
Initially, we find that in light of complainant's failure to submit a
Pre-Hearing Report as required by the AJ, that the AJ acted appropriately
in dismissing complainant's hearing request pursuant to 29 C.F.R. �
1614.109(f)(3). We shall assume, arguendo, that complainant established
a prima facie case for each basis with regard to each claim. We find
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. The agency explained that it undertook an investigation of
the alleged doll incident and that complainant's claim against the White
coworker was not substantiated. Although it is evident that the White
coworker was carrying a black figurine or doll in his pocket, there was
no persuasive evidence presented that the White coworker referred to the
doll as "Nigger Hite". Complainant also does not claim that any of the
alleged comments were made in his presence. In light of the lack of
substantiation of complainant's claims and the agency's investigation
and admonition to the White coworker, we find that complainant has not
established that he was subjected to discriminatory harassment with
regard to claim (1).
As for claim (2), the agency stated that complainant's group leader
position was abolished since there was no longer a need for the position
as it had been the only such position remaining at the facility.
The agency further pointed out that discussions about abolishing
the position began months before the alleged incident concerning the
White coworker. We find that complainant has not presented persuasive
evidence to refute the agency's position as to this claim. Therefore,
we find that complainant failed to establish that discrimination occurred
with regard to claim (2).
The agency's finding of no discrimination 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
July 16, 2009
__________________
Date
3
2
01200807177
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120081008