01A10976
06-20-2001
Jody K. George, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jody K. George v. United States Postal Service
01A10976
06-20-01
.
Jody K. George,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10976
Agency No. 4F-956-0115-98, 4F-956-0136-98, 4F-956-0012-99
Hearing No. 370-99-X2253, 370-99-X2460, 370-99-X2572
DECISION
INTRODUCTION
On November 20, 2000, Jody K. George (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision of the United States Postal Service (agency),
concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, we AFFIRM the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the bases of race (Caucasian), national origin (Polish),
color (white), age (D.O.B. 9/23/55), religion (Christian), sex (male)
and reprisal (Prior EEO activity - Title VII and ADEA) when: (1) he was
given a verbal reprimand by his supervisor on his mail route on March 26,
1998; (2) he was followed by his supervisor on his mail route on May 15,
1998; and (3) he was given instructions on August 3 and 4, 1998 which
other employees were not given.
BACKGROUND
During the relevant time, complainant was employed as a Letter Carrier,
T-6 string, at a Post Office in Merced, California. Complainant had
worked with the agency since November 30, 1979. On March 26, 1998,
complainant noticed that his co-worker's car door was left open in the
parking lot. When complainant could not locate a manager or supervisor,
he approached his co-worker directly and informed him that his car door
was open. The supervisor of Customer Services (Supervisor I) verbally
reprimanded complainant for deviating from his flow chart (Agency Case
No. 4F-956-0115-98). On May 15, 1998, Supervisor I asked complainant
when he would be finished delivering his route. Complainant stated
that he would be finished at approximately 4:00 p.m., but Supervisor
I refused to accept this time. Supervisor I told complainant that he
would go out on the streets to determine why complainant was taking the
amount of time that he was on his route. Supervisor I later followed
and observed complainant for one hour and twenty minutes, but never
discussed or documented the incident with complainant (Agency Case
No. 4F-956-0136-98). On August 3, 1998, a supervisor (Supervisor II)
reminded complainant that the 5-minute grace period for arriving to
work on time was allowed only when there was congestion at the clock.
Supervisor II directed complainant to report to him next time complainant
was late. Supervisor I later informed complainant that he did not need
to report tardiness. On August 4, 1998, Supervisor II told complainant
that he must seek permission before speaking with other employees about
irregularities on their delivery routes, despite the fact that complainant
had previously been allowed to talk freely to employees. On September
18, 1998, Supervisor I told complainant that he did not need to ask
for permission to confer with the regulars on complainant's T-6 string
(Agency Case No. 4F956-0012-99).
Complainant sought EEO counseling and at the conclusion of the
investigations of his three complaints requested a hearing before an AJ.
The AJ consolidated the three complaints and issued a decision without
a hearing finding no discrimination. The AJ determined that complainant
failed to provide evidence that he was adversely affected in any way with
regard to the terms and conditions of his employment. For this reason,
the AJ found that complainant failed to establish a prima facie case
of discrimination on the bases of race, national origin, color, age,
religion, sex or in retaliation. On October 4, 2000, the agency adopted
the AJ's recommended decision.
Complainant contends, among other things, that he was treated differently
than his co-workers and that he had engaged in protected activity against
the agency during the proximate time of these incidents. He maintains
that his work performance was subjected to heightened scrutiny after
engaging in protected activity. Finally, complainant asserts that the
agency's actions and comments amount to adverse actions. The agency
stands on the record and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non-moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws. The AJ correctly determined that complainant failed to establish a
prima facie case of race, national origin, color, age, religion, sex or
reprisal discrimination.
In order to establish a prima facie case of discrimination based on race,
national origin, color, age, religion or sex, complainant must show: (1)
that he is a member of a protected group; (2) that he was subjected to an
adverse employment action; and (3) that he was treated less favorably than
other similarly situated employees outside of his protected group. We note
that it is not necessary for complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case. O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002, n. 4 (September 18, 1996). Complainant can establish a
prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (December 6,
1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, and Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of his protected activity; (3) subsequently, he
was subjected to adverse treatment by the agency; and (4) a nexus exists
between the protected activity and the adverse action. See Whitmire
v. Department of the Air Force, Appeal No. 01A00340 (September 25, 2000).
Upon review of the record, the Commission finds that complainant failed
to establish a prima facie case of race, national origin, color, age,
religion, sex or reprisal discrimination. Here, complainant challenges:
1) being reprimand without any formal discipline, 2) being observed on
his route by Supervisor I without any discipline, and 3) being given
directions from Supervisor II that were later withdrawn by Supervisor I.
Although complainant is a member of a protected group and has engaged in
protected activity and shown that the agency was aware of that activity,
we find that he has failed to establish that he was subjected to an
adverse action. The agency's actions in the instant complaints consisted
of instructions from supervisors regarding work procedures and did not
change the terms and conditions of his employment. For these reasons,
complainant cannot establish a prima facie case of discrimination.
Furthermore, complainant has failed to create an inference of
discriminatory motivation necessary to support a prima facie case.
Therefore, we find that the AJ's decision finding no discrimination
was proper.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__06-20-01________________
Date