0120081339
08-26-2009
Douglas T. Liberty, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Douglas T. Liberty, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120081339
Agency No. 4G-780-0187-07
DECISION
On January 20, 2008, complainant filed an appeal from the agency's
December 21, 2007 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
ISSUE PRESENTED
Whether the final agency decision properly found that the agency did
not harass or discriminate against complainant on the bases of race
and disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a city letter carrier at the Northeast Carrier Annex in San
Antonio, Texas. On July 30, 2007, complainant filed an EEO complaint
alleging that he was discriminated against on the bases of race (White)
and disability when:
1. Beginning April 17, 2007, complainant was harassed regarding the
performance of his duties, Family Medical Leave Act (FMLA) absences,
medical documentation, and disrespected and ignored during a meeting;
and,
2. On May 4, 2007, the agency issued complainant a letter of warning.
In an investigative affidavit, complainant maintained that he was
he suffered a compression fracture of his vertebrae after he was in
a vehicle accident on October 9, 1992. Complainant stated that his
physician placed him on an eight hour work restriction because of
his injury. Complainant stated that he has been covered by FMLA for
approximately five years and has completed the requisite FMLA paperwork.
Complainant stated that the agency accommodated his condition by allowing
him to work eight or fewer hours on days when he was symptomatic.
Complainant stated that when he returned to work on or around April 17,
2007, he provided the Station Manager with a doctor's letter regarding
his work limitations and an empty medicine bottle. Complainant stated
that the Manager indicated that the documentation was insufficient.
The complainant stated that he asked the Manager what would be sufficient
documentation, and the Manager responded that complainant should just
bring in documentation and he would determine if it was sufficient.
He stated that the Manager said that complainant was a letter carrier
and was supposed to carry every letter that he was ordered to carry
until every letter was delivered. Complainant further stated that the
Manager supervisor told him to submit "sufficient documentation" and
report to his office. Complainant contended that when he returned to
the supervisor's office with the requested documentation, the Manager
ordered him to leave his office and issued him a letter of warning.
Complainant also stated that on April 17, 2007, his supervisor made
comments regarding what letter carriers should do and told complainant
that his FMLA documentation was insufficient. Complainant further
stated that on April 19, 2007, his supervisor called complainant into
his office and gave him a pre-disciplinary interview. Complainant stated
that on May 4, 2007, he was issued a letter of warning for not going to
his supervisor's office when instructed to do so.
Complainant further stated that on May 11, 2007, the Manager told him that
his comments were negative, which caused complainant to experience his
first panic attack. Complainant stated that on June 12, 2007 the Manager
told him that he could not take his break at the work case although
complainant was in pain and could hardly walk. Complainant further stated
that on June 13, 2007, he raised his hand during an "information meeting,"
but the Manager ignored him and terminated the meeting.
The Manager stated that he was aware of complainant's medical condition
when he first reported to the Northeast Carrier Annex on March 29, 2007.
The Manager stated that "nothing was said to [complainant] with regard
to the medical documentation that [complainant] sent him." Affidavit D,
p. 3. The Manager further stated that complainant was not disciplined
because of performance issues, and he only concurred with the May 4,
2007 letter of warning issued to complainant.
The Manager stated that he conducted an informational meeting on June 13,
2007, and he ended the meeting once he finished giving the information. He
stated that employees raised their hands during the meeting, but he
"just walked away" because the purpose of the meeting was for him to
disseminate information and not for discussion.
The Supervisor of Customer Services stated that he requested that a
letter of warning be issued to complainant because a manager instructed
complainant to accompany him and the union steward to the office but
complainant refused and left the building. The supervisor stated that
he previously discussed following instructions with complainant.
The supervisor further stated that management asked complainant to provide
medical documentation because complainant requested sick leave after
being talked to by the Station Manager about his attitude and derogatory
comments. The supervisor stated that complainant became angry and stated
that he was going home on FMLA sick leave after he was brought into the
office by management to discuss his derogatory comments an attitude.
The supervisor stated that "complainant made it about his medical
condition when he became mad at being brought in to the manager's office,
and in my opinion decided that he would get back at the post office, the
unit and his fellow employees by leaving the unit on sick leave FMLA."
Affidavit B, p. 7. The supervisor stated that complainant subsequently
provided documentation stating that he could only work eight hours per
day and up to 40 hours per week. The supervisor further stated on June
13, 2007, complainant made disruptive and derogatory comments during a
safety briefing. He stated that safety briefings only last five minutes,
and questions are not asked at the briefings.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that complainant failed to
prove that he was subjected to discrimination or harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found no
discrimination or harassment. Complainant contends that management
never discussed following instructions with him before it issued him
the letter of warning. Complainant also contends that contrary to his
supervisor's claims, he went into the supervisor's office after being
instructed to do so and brought documentation regarding his absences.
Complainant further notes that during the EEO investigation, the Manager
stated that he was not issued a letter of warning because of performance
issues, but the supervisor did say that complainant was issued the letter
because of performance issues. The agency requests that we affirm its
final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Harasssment and Disparate Treatment
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he 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). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) he is a member of a statutorily
protected class; (2) he 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.
In this case, we assume arguendo that complainant is an individual with
a disability. Nonetheless, we find that he failed to show that any of
the alleged actions occurred because of his disability or race. In so
finding, we note that the agency provided legitimate, non-discriminatory
reasons for each of the alleged actions. On appeal, complainant contends
that the Manager acknowledged that the June 13, 2007 was an informational
meeting, which routinely features questions from employees. However,
the Manager stated that the purpose of the meeting was to disseminate
information to employees, not receive questions from employees.
The supervisor further stated that such briefings only last five minutes,
and questions are not asked at the briefings. Complainant also contends
that management stated that his FMLA documentation was insufficient and
required him to bring further documentation. However, complainant failed
to address the agency's contention that it required complainant to bring
the documentation because complainant requested sick leave because the
Station Manager talked to him about his attitude and derogatory comments.
We find that complainant failed to show that the agency's explanations
were pretext for unlawful discrimination. Moreover, even assuming that
the alleged actions occurred as alleged, we find that the actions were not
severe or pervasive enough to constitute a hostile work environment.
Complainant has also alleged that he was subjected to race and disability
discrimination when management issued him a letter of warning on May
4, 2007. In order 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 or she 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). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs,
EEOC Request No. 05960473 (November 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) he or she engaged in
a protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of this matter, we find that the agency provided legitimate,
non-discriminatory reasons for its actions, as detailed above.
Complainant contends that the agency issued the letter of warning without
giving him any prior progressive discipline. However, the supervisor
stated that he discussed following instructions with complainant
before the incident that led to the issuance of the letter of warning.
Complainant further maintains that the letter of warning was a "farce"
because he went to the Manager's office as instructed; however, during
an investigative interview conducted by the agency on April 19, 2007,
complainant stated that he failed to follow the Manager's instructions
to come to his office with his union steward on April 17, 2007 because
the instruction would have violated "FMLA laws." Exhibit 6, p. 1.
We are not persuaded, however, that following management's instructions
to report to the office with his union steward would have violated FMLA
laws in this case.
Complainant also notes that during the EEO investigation, the
Manager stated that he was not issued the letter of warning because
of performance issues, but the supervisor stated that the letter was
issued because of complainant's performance issues. Upon review of
the pertinent affidavits and the letter of warning, we conclude that
the different characterizations of complainant's actions reflect a
reasonable disagreement about what constitutes performance issues
versus what constitutes conduct issues. While the failure to follow
instructions is probably more aptly described as a conduct matter than
a performance issue, reasonable persons may disagree about whether
complainant's failure to report to management's office as instructed
also constitutes unacceptable work performance. Nevertheless, management
gave a detailed explanation for issuing complainant a letter of warning
that is corroborated by complainant's responses to an April 19, 2007
investigative interview. Thus, we find complainant failed to prove that
the agency's articulated reasons were pretext for unlawful discrimination.
Consequently, we find that the agency properly found no discrimination
here.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted 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 or harassment occurred.
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
_____08/26/09_____________
Date
2
0120081339
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120081339