0120081123
09-25-2009
Ernest Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Ernest Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120081123
Agency No. 1F-946-0023-07
DECISION
On December 24, 2007, complainant filed an appeal from the agency's
November 20, 2007 final decision (FAD) 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.
ISSUE PRESENTED
Whether complainant met his burden of establishing that he was subjected
to reprisal for prior protected EEO activity or disability-based
discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Motor Vehicle Operator (limited duty) at the Bay Valley Processing and
Distribution Center, Oakland, California. On May 25, 2007, complainant
filed an EEO complaint alleging that he was discriminated against on the
bases of disability (Back/Adjustment Disorder with Depression and Anxiety)
and reprisal for prior protected EEO activity under the Rehabilitation
Act, when, since February, 2007, he was subjected to harassment in
regards, but not limited to:
(1) During the first week of February, 2007, he was accused of
stealing a postal
vehicle;
(2) On February 2, 2007, he was told he was no longer in charge of
cars and trailers;
(3) Since on or around February 7, 2007, his assignments were
continuously changed;
(4) PS Forms 3971, submitted by complainant, were never processed,
as a result, his pay was short and he was forced to request a pay advance;
and
(5) on March 19, 2007, he was told he could not obtain a postal
vehicle because his driver's license was suspended and he was denied
medical attention.
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 FAD. The FAD concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
Final Agency Decision
The FAD found as follows concerning the basis of reprisal for prior
protected EEO activity: complainant's claims amounted to his disagreements
with management's actions, and the fact that his judgment or discretion
could not be imposed over theirs. The agency also maintained that
complainant failed to demonstrate a link between his prior EEO activity,
which occurred four and one-half years prior to the claims cited in
the instant case, and the matters at issue here. The time period
between these two events was too attenuated to suggest an inference
of retaliation. Further, only his supervisor (S1) reported being aware
of complainant's prior activity, and she denied that it was applicable
in the instant claims. Accordingly, the agency found that complainant
failed to establish retaliation as to any of his claims.
Addressing disability-based discrimination, the FAD found the following:
complainant failed to meet the threshold requirement of establishing that
he was an individual with a disability. Additionally, complainant failed
to establish that he was treated differently than similarly situated
individuals not of his protected group. He also failed to prove that
he incurred adverse treatment or an adverse employment action, or that
there was a link between his claims of having a disabling condition and
the matters complained of in this complaint. In sum, the agency found
that complainant failed to establish disability-based discrimination as
to any of his claims.
Finally, the FAD addressed the incidents under a harassment framework,
noting that the record did not indicate that some of the incidents
occurred as alleged. The FAD also found that the incidents referenced in
this complaint could not be considered severe or pervasive. Additionally,
the FAD found no basis to impute liability to the agency, as complainant
did not inform his supervisors that he was subjected to a hostile work
environment. Accordingly, the FAD found that complainant failed to
prove his harassment allegation.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates his version of the facts related to
his claims of discrimination and retaliation. In reply, the agency
essentially reiterates arguments set forth in its FAD, and asks the
Commission to affirm the FAD.
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").
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
In the instant case, assuming arguendo that complainant is an individual
with a disability pursuant to the Rehabilitation Act, and that he can
otherwise establish a prima facie case of discrimination and retaliation,
the agency has articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, as to (1), complainant's managers denied that
complainant was accused of stealing. Complainant's manager (M1) stated
however, that since he is responsible for the Postal vehicle inventory
program, they did interview him (and several other employees) when a
Postal vehicle was missing for a couple of weeks. The Acting Manager
(204-B) further explained that complainant did not alert him about the
missing vehicle. He contended they were looking for the vehicle for
weeks and shortly after complainant was approached about the missing
vehicle, the vehicle showed up in the parking lot. The 204-B testified
that since complainant was the last one to whom the vehicle was assigned,
he was asked about the missing vehicle.
As to (2), S1 testified that complainant was told he was no longer in
charge of motor cars, but she does not know anything about the trailers.
She stated she was not the one who told him he was no longer in charge
of cars. M1 stated that complainant's allegation is not true at all.
He stated that complainant is still performing this function of his job;
however, he was told that in order for him to take a staff vehicle he
must sign the vehicle in and out.
As to (3), management denied being aware that complainant's assignments
were continuously changed. As to (4), M1 contended that the reason
complainant's PS Form 3971 was not processed is because complainant
did not accurately fill them out and submit them in a timely manner.
He stated complainant was told several times that he had to fill out the
PS Form 3971, accurately and turn it in timely. He contended that when
complainant sent in forms with errors, they had to be fixed, thereby
delaying the processing time.
As to (5), S1 stated that complainant was told he could not obtain a
Postal vehicle because of a suspended driver's license. S1 stated that
complainant came into the dispatch office and went to the Motor Pool
sign in/out book. She stated that she told him he was not authorized
to operate a Postal vehicle and he immediately asked her "why not?"
She contended he was very aggressive and rude in front of the others
around them and became intimidating towards her because he was unhappy
with what she had told him. S1 stated that she told complainant, "Because
your license is suspended."1 S1 testified her manager notified her the
week before that complainant's driver's license was suspended and he told
her he was going to personally notify complainant that he could not drive
a government vehicle until he cleared up the issue. The 204-B stated that
when doing a routine check, complainant's name came up on a DMV report
showing his license had been suspended. He testified when complainant
was questioned regarding the suspended license complainant said it was
due to a ticket he had received in a Postal vehicle. The 204-B stated
that complainant was told he could not operate a Postal vehicle until
he cleared up the suspended driver's license issue.
As to the allegation that S1 refused to assist him with obtaining medical
attention for his headache, S1 stated that on March 19, 2007, at about
10:20 a.m., complainant claimed he had a headache and requested to go
to the medical unit. She stated part of the process is to complete PS
Form 3956. She averred she was filling out the form when complainant
told her "this is job-related." S1 contended that complainant was only
there a very short time, but she sent him to the medical unit anyway.
She confirmed she called the medical unit to advise them that complainant
was on his way, but they notified her they were closed for the day, and
advised her to send complainant to Kaiser. She affirmed that the 204-B
was going to take complainant to Kaiser; however, complainant changed
his mind and did not want to go.
In an attempt to establish pretext, complainant avers that management is
not being honest about what transpired, pointing out that the conversation
wherein S1 told him he was no longer in charge of cars and trailers
only occurred between the two of them, so no other employee would
actually know what had transpired. He also insists that his driver's
license had not been suspended at the relevant time, and that record
evidence shows that management knew this. He explains however, that a
citation had been issued relative to the vehicle not being registered,
and a signal light violation. Even if complainant's version of events
is accurate, the Commission is simply not persuaded, by a preponderance
of the evidence, that any of the challenged actions were motivated by
discriminatory or 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
evidence presented to us.
Harassment
Further, under a harassment framework, we note that based on the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in
order to prevail on a claim of harassment, complainant must prove that:
(1) he was subjected to harassment that was sufficiently severe or
pervasive to alter the terms or conditions of employment and create an
abusive or hostile environment; and (2) the harassment was based on his
membership in a protected class. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3,
6; Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). The evidence in the record is insufficient to support a
finding that management's actions towards complainant were based on
his membership in a protected group, i.e., disability or previous EEO
activity. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
CONCLUSION
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
______09/25/09____________
Date
1 Record evidence indicates that during this incident, a shouting match
ensued, involving, in part, complainant telling his supervisor that
she was misreading a document in her possession as indicating that
complainant's license had been suspended, when it had not. Report of
Investigation (ROI), Ex. 4, at 6. Complainant stated to his supervisor
that she could not "pour water from a boot." Id. Both complainant and
the supervisor accused each other of speaking inappropriately.
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0120081123
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081123