Derick M. Hite, Complainant,v.John. E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 16, 2009
0120081008 (E.E.O.C. Jul. 16, 2009)

0120081008

07-16-2009

Derick M. Hite, Complainant, v. John. E. Potter, Postmaster General, United States Postal Service, Agency.


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

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01200807177

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120081008