0120080096
09-28-2009
George W. Bridges, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
George W. Bridges,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120080096
Hearing No. 410-2006-00299X
Agency Nos. 4H-300-0277-06 and 4H-300-0091-06
DECISION
On September 28, 2007, complainant filed an appeal from the agency's
August 29, 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. 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 agency properly found that complainant was not subjected to
discrimination or harassment on the bases of race, color, and in reprisal
for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a mail processing clerk at the Norcross, Georgia Post Office.
Complainant initially filed an EEO complaint (Agency Number
4H-300-0091-06) in which he alleged that the agency subjected him to
a hostile work environment in reprisal for his prior EEO activity when
the agency micromanaged him in February 2005; took him out of his bid
assignment and assigned him to perform more strenuous work on March 10,
2005; delayed his pay; charged him annual leave when he should have
received leave without pay (LWOP) in September 2005; and, management
threatened his employment.
Complainant also filed an EEO complaint (Agency Number 4H-300-0277-06)
in which he alleged that he was subjected to discrimination on the basis
of race/color (black) and in reprisal for prior EEO activity when in
August and September 2006, the agency charged him with LWOP.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). Complainant timely
requested a hearing but subsequently withdrew his request. Consequently,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the agency dismissed Agency Number 4H-300-0091-06
on the grounds that it was initiated by untimely EEO counselor contact.
In so finding, the agency noted that complainant failed to provide
specific dates and information with regard to some of the alleged
incidents of harassment, and complainant did not initiate EEO counselor
contact for these matters until February 16, 2006. With respect to
Agency Number 4H-300-0277-06, the agency found that this complaint was
moot because complainant's requests for sick leave were ultimately granted
by the agency. Alternatively, the agency found that complainant failed
to establish a prima facie case of race/color discrimination or reprisal
or prove that the agency's legitimate, non-discriminatory explanations
were pretextual. Complainant did not submit a statement on appeal.
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").
Agency Number 4H-300-0091-06
Notwithstanding the agency's dismissal of Agency Number 4H-300-0091-06
on the grounds of untimely EEO counselor contact, we exercise our
discretion to address the merits of this hostile work environment claim.
We note that a thorough investigation was conducted on the merits of
this complaint. Harassment that creates a hostile work environment and
is based on an individual's protected status is actionable. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). Usually, however, in
determining whether a complainant's allegations are sufficient to state
a hostile or abusive work environment claim, the Commission has held
that claims of a few isolated incidents of alleged harassment are not
sufficient to establish an harassment claim. See Simpson v. Department of
Veterans Affairs, EEOC Appeal No. 07A40026 September 16, 2005; Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); EEOC Request No. 05940481 (February 16, 1995).
In order to establish a claim of harassment/hostile work environment,
a complainant must show that: (1) he belongs to a statutorily protected
classes; (2) he was subjected to unwelcome conduct; (3) the harassment
complained of was based on his protected status; (4) the harassment
had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive
work environment; and (5) there is a basis for imputing liability to
the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247
F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169
(4th Cir. 2001); see also Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). The harasser's conduct should be evaluated from the objective
viewpoint of a reasonable person in the victim's circumstances. See Harris
v. Forklift Systems Inc., 510 U.S. 17, 22 (1993); Enforcement Guidance on
Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In this case, complainant's supervisor stated that complainant has not
been micromanaged; complainant has never been taken out of his bid
assignment; complainant has never been assigned strenuous work that
includes lifting more than 70 pounds; and, complainant's pay was not
delayed. The supervisor stated that complainant accepted a position in
the clerk craft that requires lifting up to 70 pounds, but complainant
only lifted flat tubs that weigh up to 20 pounds. He stated that he
has not seen complainant lift anything that is heavy. The supervisor
further denied threatening complainant. The supervisor also stated
that he was not aware of complainant not receiving 40 hours of LWOP in
September 2005, and complainant failed to substantiate this claim when
asked to prove that it occurred.
Upon review, we find that the agency provided legitimate,
non-discriminatory explanations for each of the alleged actions, as
detailed above. Complainant failed to rebut management's contentions
with any persuasive arguments that expose the agency's explanations
as pretext for unlawful discrimination or reprisal. 2 We also find
that the allegations, taken as a whole, are not severe or pervasive
enough to constitute a hostile work environment. Therefore, we conclude
that complainant failed to establish that he was subjected to unlawful
discrimination or harassment.
Agency Number 4H-300-0277-06
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).
For purposes of analysis, we assume arguendo that complainant
established a prima facie case of race/color discrimination and
reprisal. Nonetheless, we find that the agency provided legitimate,
non-discriminatory reasons for its actions. Specifically, complainant's
supervisor stated that complainant was charged LWOP because complainant
did not provide requested documentation to support his unscheduled
absences. The supervisor further stated that complainant was on sick
leave for most of 2006; complainant "loved to play games with management"
by contacting different supervisors for approval of absences; complainant
repeatedly failed to provide requested documentation; and, complainant
provided documentation that did not correspond with his absences.
Affidavit B, p. 2. Complainant failed to persuasively rebut the agency's
legitimate, non-discriminatory reasons for its actions. Thus, we find
that the agency properly found no discrimination.3
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision for the reasons set forth in this decision.
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
___09/28/09_______________
Date
1 We note that the complaints were consolidated by the AJ.
2 Although complainant challenges the credibility of statements submitted
by management officials in the record, complainant withdrew his request
for a hearing, and the Commission is limited to a review of the record
evidence. As a neutral party, we are not persuaded, based on the record
of investigation, that complainant has shown that the agency's articulated
reasons for its actions were a pretext for unlawful discrimination.
3 Because we affirm the agency's finding of no discrimination, we
decline to address the agency's procedural dismissal of Agency Number
4H-300-0277-06.
??
??
??
??
2
0120080096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080096