01a52875
08-09-2005
Gregory L. Ross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gregory L. Ross v. United States Postal Service
01A52875
August 9, 2005
.
Gregory L. Ross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52875
Agency No. 4J-480-0059-04
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Rural Letter Carrier at the agency's Melvin Post Office facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on March 2, 2005, alleging that he was discriminated against
on the basis of age (D.O.B. July 18, 1948) when:
(1) On January 9, 2004, he received a Letter of Warning accusing him
of deviating from his route;
(2) On January 22, 2004, he was told by a supervisor - while they both
debated religion - that he would eventually �be in Hell;�
(3) On January 28, 2004, he fell on snow-covered ground that his
supervisor had refused to clear, and stumbled because the entrance he
used when returning from his route had been blocked by a cart placed
by his supervisor;
On February 6, 2004, he was placed on �Verbal Emergency Placement,� which
results in days off from work without pay, for five days because his
supervisor accused him of urinating on the bathroom floor and refusing
to clean the area;
On February 14, 2004, his office key was taken away from him and he
was forced into a mail count;
On March 11, 2004, his radio was taken away from him;
On March 16, 2004, he was told that his starting time would now be
7:30 a.m.;
On March 25, 2004, he was issued a 7-day suspension for failing to
execute duties assigned to him.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or, alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that, concerning claims (1), (4), and
(8), complainant failed to establish a prima facie case of age-based
discrimination, noting that complainant did not point to co-workers under
the age of forty who were treated differently. Moreover, the agency
decided that the actions taken against complainant were not motivated by
discriminatory animus as much as impelled by complainant's dereliction
of duty, coupled with erratic and risky behavior.
The agency also concluded that complainant had failed to state a claim
as to allegations (2), (3), (5), and (6). Specifically, the agency
determined that complainant failed to establish how he was aggrieved in
a manner which resulted in tangible job consequences, or which otherwise
altered terms, conditions, or privileges of employment.
Similarly, claim (7) was dismissed for untimely EEO counselor contact,
communication which took place on February 9, 2004. With regards to said
claim, the agency disbelieved complainant's contention that his starting
time was modified on March 16, 2004; instead, the agency, relying on a
supervisor's statements, resolved that complainant's starting time was
actually modified on September 13, 2003, which meant that more than 45
days had gone by before initial EEO counselor contact.
On appeal, complainant makes no new contentions worthy of mention.
The agency requests that we affirm its FAD.
ANALYSIS
Age-Based Discrimination: Claims (1), (2), (3), (4),(5), (6) and (8)
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the Commission agrees with the agency that complainant
failed to establish a prima facie case of age-based discrimination
because he neglected to point to any individuals outside his protected
group who benefitted from disparate treatment.<1> In reaching this
conclusion, we note that, for the most part, complainant rarely compares
the treatment he received to that brought upon fellow workers. Still,
even in those unusual instances in which a comparator is identified,
complainant sought to garner support for his contentions by making broad
assertions that completely avoided pinpointing, emphasizing, or even
suggesting that the comparator's age was different from complainant's.
The failure to make a prima facie case defeats any possibility of
allowing for an initial inference of discriminatory motive. As such,
we find the agency acted properly by disposing of all claims alleging
age-based discrimination but failing to offer specific examples of
divergent treatment of individuals of different age.
Likewise, we sustain the agency's finding of no discrimination as
to claims (1), (2), (3), (4), (5), (6), and (8). Indulgently, the
agency decided the merits of the claims even though it had initially
dismissed them for failing to establish a prima facie case. In so doing,
the agency found that complainant had not unmasked as pretextual the
rationales ostensibly motivating the challenged actions. We agree with
the agency's judgment. In issuing a Letter of Warning, complainant's
supervisor was supposedly instigated by the fact that complainant had
not been seen traversing his assigned route for an hour-and-a-half.
When complainant's status became one of Verbal Emergency Placement,
the agency was guided by the reality of urine on a bathroom floor,
complainant stating that his shoes were in truth sprinkled with water,
and complainant's hostile response to a supervisor's reasonable request
for an explanation.<2> In the matter of the 7-day suspension, the
agency argued that complainant had failed to deliver mail as assigned,
had inappropriately backed his vehicle, and had engaged in conduct
unbecoming a public-service employee. Furthermore, the agency denied
taking complainant's radio away from him. What the agency did admit
to, on the other hand, is that the radio belonged to all employees,
and that it was inappropriate for complainant to listen - loudly - to a
religious station, especially after customers had complained about it.
The agency went on to deny that it had taken complainant's keys away
from him because of his age. Rather, the agency pointed to complainant's
aggressive and fear-inducing remarks. Finally, the agency posited that
snow had not been shoveled and a cart had not been moved because the
65-year-old supervisor was not always able to do so upon request. In
light of the foregoing, the burden is now on complainant to expose the
agency's accounts as mere pretexts for discrimination.
Complainant's attempts at countering the agency's logic are unconvincing,
therefore, the finding of no discrimination stands. Nothing in the
record suggests that the supervisors in question were motivated by
discriminatory animus when issuing disciplinary sanctions. The record
before us does, however, detail instances in which complainant was unable
to justify his pursuit of tangents, both in terms of mail routes and of
volatile remarks. While it may be arguable whether or not complainant
was the employee who urinated on the bathroom floor, for example, what is
not disputable is that complainant was susceptible to disproportionate
reactions and hostile insubordination, and that the agency had lawful
and legitimate causes for concern. Moreover, one-time remarks,
declinations to purge inconveniences, and the occasional unwillingness
to overlook disruptive behavior in a workplace atmosphere are not signs
of age-based discrimination. Additionally, we do not believe that in
the midst of a heated argument regarding religion the fact that one
person crosses the line of politeness leads to the conclusion that the
listener has evidently suffered discrimination. Along the same lines,
the agency's contention that moving carts and shoveling snow were not
governed by policy or common practice, but instead by an individual's
prerogative, is accurate, supported by the record, and convincing.
Finally, a government agency's decision to ask an employee to resort
to earphones and a portable device when listening to a religious radio
station does not a claim of age-based discrimination make. In sum,
complainant has not met, by a preponderance of the evidence, his burden
of unmasking the agency's justifications as pretextual, consequently,
the agency properly found no discrimination with regards to claims (1),
(2), (3), (4), (5), (6), and (8).
Untimely EEO-Counselor Contact: Claim (7)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, the agency properly dismissed claim (7) for untimely EEO counselor
contact. The agency relied on sworn affidavits by complainant's
supervisor which stated that the former's starting time was switched
to a different time on September 13, 2003, and that complainant was
made aware of this on that date. Complainant did not contact an EEO
counselor until February 9, 2004. Nothing in the record compels us to
disturb the agency's finding that one affiant was more credible than
the other. Similarly, the investigative report notes that information
detailing the EEO process, in particular information bearing on filing
deadlines, was posted in complainant's station during the germane dates.
Thus, we find proper the agency's dismissal of claim (7) for untimely
EEO counselor contact.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 9, 2005
__________________
Date
1 We recognize that the agency had originally engaged in
separate analyses when addressing claims (1), (4), and (8)
vis-�-vis claims (2), (3), (5) and (6). Specifically, the
agency had dismissed the latter set for failure to state
a claim. Be that as it may, the record was sufficiently
developed and the investigation adequately advanced so as to
make a decision on all aforementioned claims on the merits.
2 We further find complainant told his supervisor that she should clean
the urine in the bathroom, an additional basis for the agency's disputed
actions.