Gregory Q. Dixon, Petitioner,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
03990102 (E.E.O.C. Jan. 12, 2000)

03990102

01-12-2000

Gregory Q. Dixon, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gregory Q. Dixon v. United States Postal Service

03990102

January 12, 2000

.

Gregory Q. Dixon,

Petitioner,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 03990102

MSPB No. PH 0752980375-I-1

DECISION

INTRODUCTION

On June 9, 1999, Gregory Q. Dixon (hereinafter referred to as petitioner)

filed a petition with the Equal Employment Opportunity Commission (the

Commission) for review of the Order of the Merit Systems Protection

Board (MSPB or Board) dated May 12, 1999, concerning an allegation of

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq. The petition is governed

by the provisions of the Civil Service Reform Act of 1978 and EEOC

Regulations. 29 C.F.R. �1614.303 et seq. The MSPB found that the United

States Postal Service (hereinafter referred to as the agency) did not

engage in discrimination as alleged by petitioner. For the reasons that

follow, the Commission concurs with the decision of the MSPB.

ISSUE PRESENTED

The issue presented is whether the MSPB's determination that petitioner

failed to prove that the agency discriminated against him based on race

(black) and sex, when he was demoted effective July 18, 1998, constitutes

a correct interpretation of the applicable laws, rules, regulations,

and policy directives and is supported by the record as a whole.

BACKGROUND

On July 20, 1998, petitioner filed an appeal with the MSPB from the

agency's action demoting him from the position of Labor Relations

Specialist, EAS-19, Baltimore Performance Cluster, to Supervisor,

Distribution Operations, EAS-16, a position he had held previously. In

his appeal, petitioner alleged, inter alia, discrimination based on

race and sex. The matter was heard by an MSPB Administrative Judge (AJ),

who issued an Initial Decision (ID) on December 28, 1998, that affirmed

the agency's action and found no discrimination.<1> Petitioner sought

review by the full Board, but his petition was denied.

The agency charged petitioner with the following:

1. failure to follow a proper instruction and willfully disobeying a

direct order on April 30, 1998;

2. absence without permission (AWOL) on May 1, 1998;

3. unauthorized absence from work and failure to return to work on April

17 and April 29, 1998;

4. unsatisfactory work performance:

a. failure to timely complete work products (5 incidents);

b. failure to timely respond to discovery (1 incident);

c. failure to timely process grievances (36 incidents);

d. failure to complete a settlement agreement (1 incident); and

e. failure to process an arbitration award (1 incident).

The AJ sustained 1, 2, 3, 4(a) (3 of 5 incidents), and 4(d). We review

the circumstances of the sustained charges seriatim.

Charge 1. During the last two weeks in April 1998, petitioner's immediate

supervisor, the acting Senior Labor Relations Specialist (S1). went

on vacation. He appointed petitioner to act in his stead for the first

week and another employee (female, black) (E1) to act during the second

week. Petitioner, however, objected to E1's appointment, arguing to S1

and S2, the acting Manager, Human Resources, that he should serve for both

weeks, but his request was rejected.<2> During the second week, while E1

served as supervisor, she directed petitioner to return to the office

from an outside appointment to provide information to S2. Petitioner

refused and did not return to the office, stating that he had to pick

up his daughter at school.<3>

In sustaining this charge, the AJ rejected petitioner's arguments

that E1's order was improper. Also, he found that petitioner willfully

disobeyed the instruction to return to the office, noting petitioner's

"undisguised disdain for [E1]'s abilities as a manager" and his

displeasure that he was not designated as acting supervisor for the

entire period of S1's absence. I.D., p. 6-7. Most significantly, he

credited E1's testimony, disagreeing with petitioner's claim that E1's

testimony was not truthful. Further, he noted that other staff members

supported her description of events.

Charge 2. The next morning, on May 1, 1998, petitioner left a voice

mail message for E1 requesting sick leave. In her role as supervisor,

she requested documentation in support of his absence. On May 19, 1998,

petitioner submitted a note to S1 from a physician that he had a headache

on May 1. The note did not indicate that petitioner was unable to perform

his duties, which he conceded was insufficient evidence to support his

absence. The AJ, noting that petitioner attended depositions in the

afternoon of May 1, 1998, questioned his absence and concluded that he

sought to avoid E1 and that the agency's request for documentation was

reasonable.

Charge 3. On April 17 and April 29, 1998, petitioner went to Mt. Airy and

Easton, Maryland, respectively, for business-related matters. He completed

his work early in the day and did not return to the office. Petitioner

contended that informal office policy allowed him to go home for the

remainder of the day when he went out of town. Other staff disputed

this claim, stating that the policy required an employee to call the

supervisor for permission. Further, questions were raised about whether

petitioner's arrival at Mt. Airy was late and whether his attendance

was required in Easton, since the matter had been canceled.

The AJ rejected petitioner's contention that office policy allowed him

to go home without permission and found that he was expected to return

to the office following travel. The AJ found that petitioner's testimony

about his time and travel was exaggerated and that he failed to complete

a full work day and return to the office on each day, and he sustained

this charge.

Charge 4(a). The agency charged that petitioner failed to timely process

five requests for removal within the normal time period. Although

petitioner argued that the assignment for one case had been altered to

reflect his responsibility and that delays were not uncommon, the AJ

rejected petitioner's claims and sustained the agency's charge in three

of the cases.<4>

Charge 4(d). This charge concerned an EEO settlement agreement that

petitioner drafted in resolution of a case where the petitioner's

attorney objected to several clauses as not being consistent with the

oral agreement and in contravention of the law. Petitioner contended

that he had been unable to correct the matter because of his busy

schedule. He further argued that the agency suffered no detriment due

to the delay. Nevertheless, the AJ sustained this charge on the grounds

that petitioner's performance was not accurate or timely as charged.

With regard to petitioner's claims of discrimination based on race

and sex, the AJ found that the agency articulated a legitimate,

nondiscriminatory reason for its disciplinary action and that

petitioner's general contentions of a racially and sexually hostile

environment were not supported by the record. In his petition to the

Commission,<5>petitioner asserts that the charges against him were

contrived, in that, he was disciplined more severely than those outside of

his protected group who processed grievances and removals in an untimely

manner.

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the MSPB with

respect to the allegations of discrimination based on race and sex

constitutes a correct interpretation of any applicable laws, rules,

regulations, and policy directives and is supported by the evidence in

the record as a whole 29 C.F.R. �1614.305(c). The Commission finds that

the MSPB's decision is supported by the record and, for the reasons

stated below, concurs with its findings.

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). Petitioner must first 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.<6> McDonnell Douglas, 411 U.S. at 802; Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). Following this established order

of analysis is not always necessary where the agency articulates a

legitimate, nondiscriminatory explanation for its actions, and the factual

inquiry can proceed directly to the third step of the McDonnell Douglas

analysis--the ultimate question of whether petitioner has shown by a

preponderance of the evidence that the agency's actions were motivated by

discrimination. United States Postal Service Board of Governors v. Aikens,

460 U.S. 711, 713-14 (1983).

In response to petitioner's allegations of discrimination with regard to

the action taken against him, the agency has shown that petitioner failed

to follow a proper instruction and willfully disobeyed a direct order;

was AWOL on one day; was absent without authorization from work and

failed to return to work on two occasions; and his work performance was

unsatisfactory in two respects. The evidence in the record supports the

charges and were sustained by the AJ. We find therefore that the agency

has articulated a legitimate, nondiscriminatory reason for demoting

petitioner.

In the third step of the McDonnel Douglas analysis, the burden returns

to petitioner, who must demonstrate by a preponderance of the evidence

that the agency's action was motivated by discrimination, that is,

its articulated reason was not its true reason but a sham or pretext

for discrimination. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993). In the matter herein, petitioner argues that the charges against

him were contrived and alleges a discriminatory hostile work environment

based on race and sex.

Following two recent Supreme Court decisions, the Commission issued

guidance concerning an agency's liability for harassment by supervisors

and amplifying its standard of liability in claims of harassment. See

Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment

by Supervisors (June 18, 1999) (Notice).<7> Flowing from the Court's

decisions, the Commission's guidance, as applied to federal agencies,

is premised on the principles that an agency is liable for the acts

of its supervisors and that agencies should be encouraged to prevent

harassment in the workplace and employees encouraged to avoid or limit

the harm caused by the harassment. <8> Notice, p. 1.

To support a determination of unlawful harassment, petitioner must

show that the conduct of which he complained had a direct effect on

his employment status--here, on the agency's action demoting him. A

determination that unlawful harassment has occurred must be predicated

on events that are sufficiently severe and offensive, forming an ongoing

pattern of activity such that the conditions of the workplace are altered,

that is, the harassment has culminated in a tangible employment action

or created a hostile work environment. Notice, p. 2, citing, Oncale

v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In analyzing

allegations of harassment, the Commission will continue to consider the

frequency of the alleged discriminatory conduct, its severity, whether

it is physically threatening or humiliating, and if it unreasonably

interferes with an employee's work performance. Harris v. Forklift

Systems, Inc., 510 U.S. 17 (1993). Usually, unless the conduct is severe,

a single incident or group of isolated incidents will not be regarded

as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355,

1358 (11th Cir. 1982). See Notice, 2.

In the instant matter, petitioner has alleged discriminatory harassment

with regard to the disciplinary action taken against him, in that, he

was treated more severely than similarly situated persons outside of

his protected group. In support of his claim, petitioner described an

incident offensive to him, although not to other black employees, where

S1 dragged his feet saying, "Hey, brother man." I.D., p. 41. The AJ found

that petitioner provided no details as to the frequency or circumstances

of S1's behavior. Ibid. In our view, this event, without more explication,

is an isolated event and does not constitute harm sufficient or severe

enough to rise to the level of discriminatory harassment. We note, in

addition, that no other employee found S1's action offensive. Petitioner

has not presented any other incident or event beyond this episode,

except for his unsupported and generalized claims of harassment and

discrimination, which we find are without any support in the record.

Finally, we note that the AJ found that petitioner failed to identify

any employee that acted in a similar fashion as to the "totality"

of the sustained charges who was not similarly disciplined. I.D.,

p. 40. Based on the record before us, we find that petitioner has failed

to demonstrate that the reasons articulated by the agency for its action

were pretextual. Based on the foregoing, the Commission concurs with the

MSPB's finding that petitioner's removal was not the result of unlawful

discrimination.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to CONCUR with the final decision

of the MSPB finding no discrimination. The Commission finds that the

MSPB's decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported by the

evidence in the record as a whole.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, WITHIN THIRTY

(30) CALENDAR DAYS of 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.

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

January 12, 2000

__________________

Date

1The AJ also found that petitioner did not show harmful error by the

agency, that the disciplinary action based on the sustained charges

promoted the efficiency of the service, and that the penalty was

reasonable.

2 Petitioner contended that he was more qualified than E1, who, although

having served six years in details to Labor Relations, was not a permanent

employee at that time. Petitioner began his service in Labor Relations

in 1994.

3Petitioner testified that he objected to E1's suggestion that he

bring his daughter to his office, although he had done so on a previous

occasion, claiming that he feared for her safety.

4 Petitioner contended that he planned to complete all delayed work

assignments on Saturday, May 2, 1998. Upon his arrival at the agency,

however, he was barred from entry. Effective May 4, 1998, he was

reassigned to another position at another facility without loss of pay,

until the action herein.

5Petitioner also claims, for the first time, that the agency acted in

reprisal with regard to its action barring him from the facility on May 2,

1998. The record does not show that petitioner raised a reprisal claim in

his appeal to the Board or during the proceedings. See the AJ's Orders of

August 10 and September 28, 1998. Even if petitioner had alleged reprisal

discrimination, he has not shown that the agency's action was based on

discriminatory animus against him for his previous participation in a

five-year old EEO class action complaint.

6We agree with the AJ's conclusion that petitioner's claim of sex

discrimination did not call for a mixed motive analysis. I.D., p. 43.

7Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher

v. City of Boca Raton, 524 U.S. 775 (1998). Although these decisions

addressed sexual harassment, the Court's legal analysis reached into

cases involving harassment on other bases, and therefore the Commission's

guidance sets forth a standard of liability applicable to all forms of

unlawful harassment. Notice, p. 1.

8 Based on these two axioms, the guidance holds that, where harassment

is found and culminates in a tangible employment action, such as the

matter at issue herein, the agency is strictly liable, and no defense

is available. Notice, p. 1.