0120092580
11-23-2009
Joel M. Rose, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joel M. Rose, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092580
Agency No. 4H-320-0095-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 21, 2009 final decision concerning an equal
employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a City Carrier
at the agency's Nobles Station in Pensacola, Florida.
On July 31, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to harassment and
a hostile work environment on the bases of race (white), disability
(back/shoulder), age (over 40), and in reprisal for prior protected
activity when:
1. on April 25, 2008 and May 3, 2008, he was given a new modified job
offer;
2. on May 2, 2008, he was issued a Letter of Warning (LOW); and
3. on July 23, 2008, he was issued a Notice of Seven (7) Day Suspension.1
The record reflects that complainant requested that his formal complaint
be amended to include the following claims:
4. on August 22, 2008, he was told now to call the postmaster;
and
5. on August 2, 2008, he was given a Standard Operating Procedure (SOP)
which only names him. 2
The agency accepted amended for investigation claims 4 - 5. However,
on September 5, 2008, the agency issued a partial dismissal concerning
claims 4 and 5. The agency dismissed claim 4 for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). The agency also dismissed
claim 5 for failure to state a claim, finding that complainant was not
aggrieved. The agency further found that the alleged acts did not rise
to the level of harassment.
At the conclusion of investigation concerning claims 1 - 3, complainant
was provided with a copy of the report of the investigation and notice
of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. However, complainant
subsequently withdrew his request. Consequently, the agency issued a
final decision pursuant to 29 C.F.R. � 1614.110(b).
In its May 21, 2009 final decision, the agency found no discrimination
concerning claims 1 - 3. The agency determined that complainant did
not establish a prima facie case of race, disability, age and reprisal
discrimination.3 The agency further found that assuming, arguendo,
that complainant established a prima facie case of race, disability,
age and reprisal discrimination, management nevertheless articulated
legitimate, nondiscriminatory reasons for its actions which complainant
failed to show were a pretext.
Regarding the harassment claim, the agency found that complainant did
not prove he was subjected to harassment sufficiently severe or pervasive
so as to render his work environment hostile.
Regarding claim 1, the Manager Customer Services (MCS) stated that
she became aware of complainant's alleged physical impairment when she
assumed the position of manager at the Nobles Station. MCS stated that
complainant's modified Letter Carrier assignment offer was based on his
injury on the job. MCS stated that complainant had been assigned as a
limited duty carrier since November 11, 1976 and has worked within the
restrictions set forth by his physician. MCS stated that complainant
provided an updated OWCP Form CA-17 for his limitations, and this action
caused complainant's job offer to be updated. MCS further stated that
complainant's hours of work were changed to comport with the needs of
the agency given the declines in revenue and volume. Specifically, MCS
stated that complainant "provides an update CA17 for his limitations
and the job offer was updated. [Complainant's] pay does not change,
but his work hours [change] to workload of the postal service. As I
stated before the revenue and volume is down. For example: in the past,
Nobles Station delivered about ten express mail pieces on Sunday now we
have zero." Furthermore, MCS stated that complainant's race, disability,
age and prior protected activity were not factors in her determination
to modify his job offer.
Regarding claim 2, complainant's supervisor (S1) stated that she was the
deciding official to issue complainant a LOW on June 7, 2008. The record
reflects that on May 22, 2008, complainant did not deliver an Express
Mail piece in time to avoid failure. The record further reflects that
complainant's failure to perform his duties as required resulted in
a loss of revenue and a loss of customer satisfaction and confidence.
The record reflects when questioned concerning this incident, complainant
acknowledged his awareness of the scanning procedures and the importance
of timely scanning and delivery of Express Mail, as shared through
several standup talks.
MCS stated that she was the concurring official concerning complainant's
LOW because he "failed to perform his duties as a carrier." She said
that such a service failure can lead to a reduction of postage and
loss of revenue. With respect to complainant's contention that he was
subjected to harassment, MCS denied it. MCS stated "I do not believe
that I was harassing [complainant]. I was just simply requesting that
he perform his duties."
Regarding claim 3, S1 stated that complainant was issued a Notice of Seven
(7) Day suspension for failure to follow instructions/failure to perform
the duties of his position in a satisfactory manner. Specifically, S1
stated "it was reported to me that on June 5, 2008, upon [complainant's]
return to the office after picking up Express Mail from the Plant,
he failed to place the mail in the designated area so that the clerks
could identify them by routes and distribute to the carriers. No one
was aware that he had placed them in another place and this resulted in
7 Express Mail failures." Moreover, S1 stated that complainant's race,
disability, age and prior protected activity were not factors in her
determination to issue him the 7-day suspension.
MCS stated that she was the concurring official concerning complainant's
7-day suspension "because in this instance, the Postal Service failed to
provide service. If the Express Mail is not delivered by the designated
time, the customer is automatically refunded which causes a loss in
postal revenues."
On appeal, complainant generally argues that agency management made false
and misleading statements in the case. Complainant further states that
claims 4 - 5 were "falsely dismissed but were readmitted by the Judge
Advocate. These two allegations was further harassment technique used by
[MCS] and [S1] Manager and supervisor at Nobles Station."
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
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. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the 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.
See St. Mary's Honor Center 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not
demonstrated that these reasons were a pretext for discrimination.
Complainant, on appeal, has not provided any persuasive argument
regarding the propriety of the agency's finding of no discrimination.
Complainant asserts, for example, that agency management made false and
misleading statements in the instant case and that he was subjected to
ongoing harassment. However, our review of the record reflects that
there are no agency improprieties in regard to its findings.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision concerning claims 1 - 3 because the preponderance of the
record evidence does not establish that discrimination occurred.
Claims 4 -5
In its September 5, 2008 partial dismissal, the agency dismissed claims
4 - 5 for failure to state a claim, finding that complainant was not
aggrieved. The agency also found that the alleged acts did not rise to
the level of harassment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Complainant has not alleged a personal loss or harm regarding a term,
condition or privilege of his employment. The events described
by complainant are not sufficiently severe or pervasive to state a
claim of discriminatory harassment. The agency properly dismissed the
instant complaint for failure to state a claim. Moreover, the alleged
incidents were not sufficiently severe or pervasive to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's dismissal of claims 4 - 5 for failure to state
a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
November 23, 2009
__________________
Date
1 As a result of grievances which complainant filed, the LOW and the
Notice of Seven Day Suspension were reduced to lesser penalties: the
suspension was completely eliminated, and the LOW was given a reduced
life of only six months.
2 For ease of reference, the Commission has re-numbered complainant's
amended claims as claims 4 - 5.
3 The Commission presumes for the purposes of analysis only, and without
so finding, that complainant is an individual with a disability.
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0120092580
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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