0120110396
03-15-2012
Jay Sutter, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Jay Sutter,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120110396
Hearing No. 520-2009-00465X
Agency No. 4B-018-0073-08
DECISION
On October 13, 2010, Complainant filed an appeal from the Agency’s
September 30, 2010, notice of final action 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s notice
of final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency’s Main Street Station in Springfield,
Massachusetts.
On September 25, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of religion (Christian),
age (47), and in reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when since May 6, 2008 and continuing,
he was subject to harassment including:
1. On May 6 and 7, 2008, Complainant was placed on emergency placement
off-duty status without pay after being accused of being too slow;
2. On May 15, 2008, the supervisor accused Complainant of not working
and followed him on his route;
3. On May 24, 2008, Complainant was subjected to excessive scrutiny
through street observations;
4. On June 2, 2008, the supervisor accused Complainant of "hanging around"
and did not allow him to take a paid lunch break;
5. On September 16, 2008, the supervisor yelled at Complainant while he
was on break, gave him a pre-disciplinary interview and threatened to
fire him; and
6. On October 7, 2008, management refused to allow Complainant to go to
the doctor for a tick bite.
In its October 16, 2008 final decision, the Agency dismissed issue (1)
on the grounds of untimely EEO Counselor contact. The Agency dismissed
issues (2) through (6) for failure to state a claim. Complainant appealed
the Agency’s dismissal to the EEOC’s Office of Federal Operations
(OFO). In EEOC Appeal No. 0120090417 (April 23, 2009), OFO reversed
the Agency’s decision to dismiss and remanded the case for further
processing.
The AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing on September
27, 2010. The Agency subsequently issued a notice of final action fully
implementing the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.
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 for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Nov. 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”).
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which require
a hearing. Moreover, we find the record in the present case was fully
developed. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
In the present case, the Agency has articulated legitimate,
non-discriminatory reason for its actions. With regard to issue (1), the
Agency noted that Complainant was placed on emergency placement off-duty
status without pay due to his behavior on May 6, 2008. Person B, the
Manager of Customer Services, stated that he heard some commotion, and
was asked by Person A, the Acting Supervisor, to come to the scene to
talk to Complainant. Person B stated that when he arrived, there was a
heated discussion between Complainant and Person A. Person B stated that
Complainant was agitated and he asked Complainant to calm down. Person B
stated Complainant continued to get more agitated and started waving his
arms and pointing at Person A. Person B stated that he told Complainant
to stop; however, Complainant continued, so he made a determination to
place Complainant off the clock because of his continued agitated state.
Complainant was off work the rest of May 6, 2008, and the next day.
While Complainant was on emergency placement off-duty status, the Union
Steward told Person B that Complainant was trying to illustrate what had
transpired earlier between Complainant and Person A and did not intend
to be threatening. Person B stated that he then spoke with Complainant
who concurred with the Union Steward’s explanation of the events.
Thereafter, Person B brought Complainant back to work.
With regard to issue (2), Complainant alleged that on May 15, 2008, the
supervisor accused Complainant of not working and then followed him on
his route. The Agency noted that Person A was conducting an observation
on another route when he noticed that Complainant was parked outside of
his assigned spot. The Agency stated that Person A recorded how long
Complainant was parked there, but took no further action.
With regard to issue (3), Complainant alleged that on May 24, 2008,
Person C, Supervisor Customer Services, used a 3999 as a "pressurized
strategy.” The Agency stated that the 3999 is an observation which
is required to be conducted once every fiscal year or more than once a
year if the carrier's performance is in question. Person C explained
that a 3999 is a time study where a supervisor goes out with the carrier
and evaluates time performance, observes what the carrier does, and
makes suggestions for streamlining the route. The Agency noted that
this observation is required for every carrier and that on the day in
question Person C was following Agency protocol for monitoring the work
of the Agency's carriers.
With regard to issue (4), Complainant claimed that on June 2, 2008, the
supervisor accused Complainant of "hanging around" and did not allow him
to take a paid lunch break. Person C explained that Complainant spent
a half an hour searching for his cell phone when he was supposed to be
performing work functions for the Agency. Person C told Complainant that
because he had spent that time searching for his personal belongings,
this time would count as his break. The record reveals that carriers
are not paid for their lunch break.
With regard to issue (5), Complainant claimed that on September 16, 2008,
the supervisor yelled at Complainant while he was on break, gave him a
pre-disciplinary interview and threatened to fire him. The Agency noted
that on this date, Complainant was observed not wearing his seatbelt
while on route in violation of the Employee and Labor Relations Manual,
the City Carriers Duties and Responsibilities, and the Massachusetts
District Safety & Health Policy. Person C noted that he was out with
Person A and the Safety Specialist when they saw Complainant driving
without his seatbelt. The record reveals that both the Safety Analyst
and Person A approached Complainant about his behavior and questioned
him as to why he was not wearing his seatbelt. After observing him
driving without his seatbelt, the Agency issued Complainant a Notice
of Removal for failure to perform his duties in a safe manner and took
into consideration other past disciplinary actions taken against him.
The record reveals the Notice of Removal was subsequently modified and
Complainant was placed on a fourteen-day suspension.
With regard to issue (6), Complainant alleged that on October 7, 2008,
management refused to allow him to go to the doctor for a tick bite.
Person C stated Complainant came to work that morning and said he
believed he had been bitten by a tick. Person C explained that the
Union Steward notified him that Complainant had a tick bite and wanted
to seek medical attention. Person C stated that he told the Union
Steward that Complainant was able to go to the doctor, but that he
would have to provide documentation and take an unscheduled absence.
Person C stated that Complainant did not want to have an unscheduled
absence on his record and did not go to the doctor at that time.
In his affidavit, Complainant stated that he believed he was discriminated
against based on his age because he stated that although he is 47, years
old Person C wants him to move like a twenty-year old. Complainant stated
that he was discriminated against based on his religion because Person C
stated that he is an atheist and ordered Complainant not to mention God.
Complainant also stated that he believed he was discriminated against in
reprisal for his prior protected activity because Person C is a spiteful,
hateful person who holds grudges.
Upon review, we note that other than his subjective belief that Person
C wants him to move like a twenty-year old, Complainant failed to
present any evidence that Person C took any of the alleged actions
because of Complainant's age. Moreover, assuming for the purposes of
summary judgment that Person C stated that he is an atheist and ordered
Complainant not to mention God, we find that Complainant has not shown any
connection between these statements and the actions at issue in this case.
Thus, in the present case, we find Complainant has failed to show by a
preponderance of evidence that the Agency’s actions were taken because
of his age, religion, or in reprisal for his protected EEO activity.
CONCLUSION
Accordingly, the Agency’s notice of final action finding no
discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
March 15, 2012
__________________
Date
2
01-2011-0396
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120110396