0120073997
03-12-2009
Edward E. Sears, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Edward E. Sears,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120073997
Agency No. 1H-336-0008-07
DECISION
On September 17, 2007, complainant filed an appeal from the agency's
August 24, 2007 final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
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.
At the time of events giving rise to this complaint, complainant worked
as a Maintenance Mechanic at the Tampa Processing & Distribution Center in
Tampa, Florida. On February 13, 2007, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of reprisal for
prior protected EEO activity [arising under the Rehabilitation Act] when,
on December 9, 2006, his supervisor altered his clock entries for work
performed on November 6, 2006, resulting in complainant being paid for
12 hours instead of 17.5 hours worked.1
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), 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 as alleged.
The FAD found that complainant failed to establish a prima facie case
as he did not identify any similarly situated individuals who were
treated more favorably under similar circumstances. Additionally,
the FAD found that complainant failed to establish a nexus between his
prior EEO activity and the challenged actions. The FAD next found that
assuming, arguendo, that complainant presented a prima facie case of
discrimination based on retaliation, the agency articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, complainant's
Manager (M1) acknowledged that he agreed to let complainant drive
his personal vehicle to South Carolina after having a discussion with
him in which complainant expressed his desire to drive his own vehicle
because he had family in the area and wanted to visit which he could not
have done with a Postal vehicle. He also stated that he left it open
for complainant to return back to Tampa due to a lack of information
on when the work day would end. He testified that complainant and a
co-worker decided on their own to travel together and travel back to
Florida exceeding a 12 hour day and the normal procedure regarding travel.
He further stated that he would not have instructed complainant to return
on the same day if he had known complainant's total work hours were to
exceed 12 hours. M1 and another manager (M2) indicated that permission
was not granted in this situation and complainant did not have prior
approval to travel in excess of 12 hours. M1 noted that if complainant
had flown, as a comparison, he would not have received more than 12 hours
of pay. M2 also stated that complainant could only be paid for 12 hours
and did not have authorization to exceed 12 hours. M2 further asserted
that he would have put complainant in a hotel before he worked complainant
17.5 hours. He further indicated that due to complainant sharing a
ride with his co-worker (B1), neither of them actually drove full-time.
M2 asserted that in this situation, the 12 hours were appropriate.
The FAD additionally found that the Acting Supervisor (A1) testified that
he made the changes to complainant's clock rings after being told by the
two Managers through email to do so. He explained that when he input
the clock rings, the system flagged him with a warning about the entry.
A1 stated that after examining the hours more closely, he realized how
many hours were involved. Thereafter, he stated that he took the data
for the hours to the Managers for their review. According to A1, both
Managers informed him that he could not input this many hours and that
he needed to change the entry. He further stated that M1 then informed
him that he would send him an email on how the employees should be paid
for the day and then he could make the changes. M1 sent an email dated
November 9, 2006 to A1 directing that complainant be paid for 12 hours
for his work on November 6, 2006, rather than eighteen hours straight.
As set forth in the email, supervisors involved with the move were
instructed to pay the employees from 6:00 until 10:30 loading the trucks
on operation 0750 and from 11:00 until 18:30 to pay on operation 624 for
travel. According to record evidence, complainant's hours were changed
to reflect this instruction. The FAD further found that complainant
provided no evidence, other than self-serving statements, to establish
that management's reasons are pretext for retaliation.
On appeal, complainant contends that on other occasions, other employees
have received pay for more than 12 hours in a day. Complainant contends
that management committed fraud against him. Complainant asserts that
he was subjected to retaliation. In response, the agency asks the
Commission to affirm the FAD.
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").
The statutory retaliation clauses prohibit any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity.
Petty slights and trivial annoyances are not actionable, as they are
not likely to deter protected activity. More significant retaliatory
treatment, however, can be challenged regardless of the level of harm.
As the Ninth Circuit has stated, the degree of harm suffered by the
individual "goes to the issue of damages, not liability." Hashimoto
v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination-whether based on race or some other
factor such as a motive of retaliation - is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]''). The retaliation provisions set no qualifiers on the term
"to discriminate," and therefore prohibit any discrimination that is
reasonably likely to deter protected activity. A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees. EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998)
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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).
Assuming complainant could establish a prima facie case of retaliation,
the agency has articulated legitimate, nondiscriminatory reasons for
its actions. Based on this record, complainant has not persuaded
the Commission that more likely than not, the challenged actions were
motivated by retaliatory animus. In so finding, we note that we do not
have the benefit of an Administrative Judge's findings after a hearing,
and therefore, we can only evaluate the facts based on the weight of the
evidence presented to us. Based on a thorough review of the record and
the contentions on appeal, including those not specifically addressed
herein, we AFFIRM the FAD.
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
March 12, 2009
Date
1 Complainant explained that he and another employee, a Building Equipment
Mechanic, (B1) traveled to Tampa, Florida from Greenville, South Carolina
on November 6, 2006 for a machine move; first loading the truck in South
Carolina and then departing around noon and arriving in Tampa that night
around 11:30pm.
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2
0120073997
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073997