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.