0120140192_and_0120143003
02-03-2016
Harley J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harley J.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal Nos. 0120140192 and 0120143003
Hearing Nos. 520-2013-00210X and 520-2014-00027X
Agency Nos. 4B-020-0106-11, 4B-020-0053-12, and 4B-020-0023-13
DECISION
On October 3, 2013, Complainant filed an appeal from the Agency's August 28, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. On August 26, 2014, Complainant filed an appeal from the Agency's July 23, 2014 final decision concerning his EEO complaint alleging employment discrimination in violation of the Rehabilitation Act. The Commission deems the appeals timely and accepts them pursuant to 29 C.F.R. � 1614.405(a)
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Custodian at the Agency's Post Office facility in Worcester, Massachusetts.
On May 5, 2012 and August 4, 2012, Complainant filed two EEO complaints which were consolidated. In his complaints, he alleged that the Agency discriminated against him on the bases of race (Caucasian), color (White), disability (spinal injury), age), and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On or about March 14, 2012, the Labor Relations Specialist discussed his prior protected EEO activity with a union steward.
2. On March 6 and 19, 2012, the Manager denied Complainant's request to view his PS Forms 3971 and 3972 per the instructions of the Labor Relations Specialist;
3. On March 19, 2012, a Supervisor (Supervisor 2) approached his work area and harassed him;
4. On April 26, 2012, he was bypassed for overtime in favor of a junior custodian.
5. Since May 2012, and ongoing, he has been bypassed for overtime;
6. Complainant was given Official Discussions on May 30 and 31, 2012;
7. On unspecified dates, management created a hostile work environment by trying to force him to work while sick;
8. On June 5, 2012, his bid sheet was disallowed;
9. On June 14, 2012, he was denied a higher-level duty assignment;
10. On June 14, 2012, he received a letter informing him that his request for a salary offset was denied;
11. On July 7, 2012, Supervisor 1 informed him that he could not be on the main workroom floor;
12. On or about August 1, 2012, he met with the Manger who informed him that she was conducting an investigation regarding him not cleaning areas on his route and then threatened him with discipline.
13. On or about August 25, 2011, and continuing, management assigned him tasks which were outside of his medical restrictions;
14. On or about August 25, 2011, the Agency did not activate his health benefits after he resumed employment.
On March 8, 2013, Complainant filed another EEO complaint alleging harassment and discrimination on the bases of disability and reprisal when:
15. From November 1, 2012 and ongoing, he has been denied overtime;
16. For three days in late November 2012, he was forced to work in the Boiler Room while asbestos removal work was being done;
17. On unspecified dates, he was required to work in a room which contained raw sewage;
18. On February 9, 2013, he was denied Administrative Leave;
19. On February 27, 2013, he was trapped in the Maintenance Supply tunnel when the only exit was blocked by equipment from the CVS section; and
20. On an unspecified date, management refused to implement a higher level Group Leader procedure at the Worcester Post Office.
At the conclusion of the investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing in each instance but subsequently withdrew his requests. Consequently, the Agency issued final decisions pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
These appeals followed. On appeal, Complainant asserted that the Agency subjected him to harassment, discrimination, and retaliation. He also noted that the Agency has breached an EEO settlement agreement by denying him overtime and failing to provide him with benefits pursuant to the agreement. The Agency responded to the appeals requesting that the Commission affirm its decisions finding no discrimination.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As for claim (1), the Labor Relations Specialist denied any such conversation regarding Complainant's EEO complaint. We note that there is no evidence, beyond Complainant's assertion, that supports his claim that this event occurred. Based on the record before us, we cannot find that Complainant was subjected to discrimination due to claim (1).
As for claim (2), Manager1 averred that Complainant made his request to see documents but she was not sure which ones he wanted. However, she stated that he could make a written request and the documents could be made available. Complainant merely argued that he was not given them upon request based on official discussions.
In claims (4), (5), and (15), Complainant has asserted that he was denied overtime. Manager1 averred that overtime would require Complainant to drive which he could not do. She also noted that Complainant was provided with overtime but, there were times when overtime was not available on his tour. Complainant merely argued that he could have done overtime without providing additional information or evidence beyond his assertion.
In claim (6), Complainant alleged he was given official discussions in May 2012. Manager1 averred that he was given the discussion due to his attendance issues. Complainant asserted that his attendance is protected by his settlement agreement and the Family Medical Leave Act. However, Complainant did not challenge Manager1's statement about his attendance problems.
In claim (8), Complainant indicated that his bid sheet was disallowed. Another manager (Manager2) indicated that Complainant failed to properly fill out the form and noted that the Union agreed that the form was not correctly completed. Complainant did not challenge Manager2's argument. In claim (14), Complainant asserted that he did not have his health benefits activated when he resumed employment. The Agency indicated that Complainant needed to provide paperwork to the Labor Relations Specialist in order to move forward on his health benefits. Complainant needed to specifically complete the form and provide information in fields on the form in order for the benefit to be processed.
As for claims (9) and (20), Complainant asserted that he was not provided with higher leve1 duty assignments. Manager1 indicated there was no such higher level work available at the facility. Manager1 noted that Complainant believed that a Group Leader was needed but it was something that was not needed nor was the facility directed to establish such a position. Complainant was denied a request for a salary offset as raised in claim (10). Manager2 averred that the request was denied because Complainant failed to provide supporting documentation.
In Claim (11), Complainant asserted that he was told by the Supervisor that he could not be on the main workroom floor. The Supervisor stated that Complainant was not required to be on the workroom floor and he had been asked by female coworkers about Complainant being there. As such, the Supervisor asked that Complainant not be on the workroom floor. Manager1 indicated that she was on leave at the time Complainant claimed he was investigated by her as asserted in claim (12).
Finally, as to claim (18), Complainant asserted that on the date in question, he had a request for leave which he requested that it be cancelled for February 9, 2013. He noted that on that day, the government had closed due to weather and he should have been provided with administrative leave. Manager1 averred that Complainant had been provided with annual leave for February 9, 2013, as he had requested. He sought for a change from annual leave to administrative leave because of the office closure. Manager1 denied the request because Complainant was not scheduled to work and already had taken annual leave for the day.
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Complainant failed to provide any evidence to support his claims that the Agency's reasons were pretext for discrimination. Therefore, we conclude that Complainant failed to establish that the alleged events constituted unlawful discrimination.
Denial of Reasonable Accommodation
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9.
In claim (13), Complainant asserted that he was assigned tasks that were outside of his medical restrictions. Complainant asserted that he was asked to mop the stairs and use "power industrial equipment." Manager1 averred that once Complainant made her aware of his limitation regarding power equipment, she has not assigned him that task. She stated that "When I assign him duties, all of his limitations are considered." Complainant did not provide any evidence to establish that the Agency assigned him tasks outside of his medical restrictions. As such, we conclude that Complainant has not shown that the Agency violated the Rehabilitation Act with respect to claim (13).
Harassment
It is well-settled that harassment based on an individual's race, color, age, disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he is a member of his protected bases, a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on his protected bases and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her 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); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant asserted that he was subjected to harassment based on the events indicated above in addition to claims (3), (7), (16), (17), and (19). Upon review of the record, we find that Complainant has failed to provide any evidence to establish that the alleged events occurred as he suggested and that these events were because of his protected bases and/or prior EEO activity. We note that the Agency officials denied that the events occurred as suggested by Complainant. Complainant merely made assertions without providing supporting evidence or witnesses to bolster his arguments that he was subjected to harassment. As such, we conclude that Complainant failed to show that he was subjected to harassment as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decisions finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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0120140192 and 0120143003