0120092009
09-16-2009
John R. Landavaso, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John R. Landavaso,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092009
Hearing No. 540-2008-00067X
Agency No. 4E-852-0120-07
DECISION
On April 3, 2009, complainant filed an appeal from the agency's March 6, 2009 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Sales Services Distribution Associate at the agency's Phoenix Sierra Adobe Station in Phoenix, Arizona. He began working at the station in October 2004. There is no evidence in the record to suggest that complainant had time and attendance problems until April 2007. 1 However, during the months of April, May, July and September 2007, complainant was charged leave without pay (LWOP) on approximately four occasions for: (1) taking leave despite having had his leave request denied; and (2) walking off the job. In November and December of 2007, he was issued seven-day suspensions; one for failure to be in regular attendance and one for Unsatisfactory Work Performance and Failure to Follow Instructions. The record does not address whether there was a change in complainant's supervisory chain of command between October 2004 and April 2007.
On September 10, 2007, complainant filed an EEO complaint alleging that he was discriminated against on the bases of national origin2 (Hispanic), sex (male), religion (Christian), color (Brown), age (45), and in reprisal for prior protected EEO activity (arising under Title VII and the ADEA) when he was counseled about his absences, charged LWOP and bypassed for overtime opportunities. In November 2007, he amended his formal complaint to include the suspensions as well as the allegation that his automobile tire was slashed in the parking lot of the postal facility in connection with a restraining order he filed against one of his supervisors. Finally, he believes that management's actions in their totality constituted unlawful harassment.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that complainant did not submit a required witness list and failed to respond to the agency's motion for a decision without a hearing. The AJ remanded the complaint to the agency for the issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the agency found that it properly dismissed a claim that complainant was unlawfully subjected to a fact finding interview concerning nixie mail, and that complainant failed to prove the agency discriminated against him in regard to the above referenced claims which were accepted for full investigation.
CONTENTIONS ON APPEAL
Complainant's statement on appeal consists of the following:
I appeal the final agency decision because there was harassment to the point of physical property damage to my vehicle. There has to be some justice come [sic] out of this ordeal. The agency lawyer has tried to make me look like the problem employee which is not the case.
See Notice of Appeal (April 3, 2009). In turn, the agency submitted a brief arguing that complainant was not bypassed for overtime opportunities, that complainant failed to provide adequate and/or credible documentation for his absences and that his supervisor's decision to discipline complaint for infractions does not constitute actionable harassment. See Agency Response to Complainant's OFO Appeal (May 11. 2009).
APPLICABLE LAW
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment based on race, sex, disability, age, or reprisal, complainant must show that: (1) he is a member of the statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor, complainant must also show that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
ANALYSIS AND FINDINGS
Initially and pursuant to EEOC Management Directive 110, Chapter 9, � IV.A. (November 9, 1999), the Commission exercises its discretion not to review the agency's procedural dismissal and the propriety of the AJ's decision to remand the complaint for a final agency decision because complainant did not specifically address these two issues on appeal. We note that had the hearing process continued, complainant may have been able to present evidence sufficient to support an inference that the agency's actions were motivated by discriminatory intent. The record, as it stands fails to support such an inference. Additionally, complainant has failed to refute any of the agency's explanations for its actions with credible or persuasive evidence. For example, we are not persuaded that complainant had to go to Mexico for an emergency on July 2-3, 2007 when his annual leave request for that holiday weekend had been previously denied. Although he claimed that there was a death in the family, he produced no evidence to prove that was in fact the case. Similarly, the evidence supports a finding that complainant was given as many, if not more, opportunities to work overtime during the relevant time period as were his coworkers. Thus, his claim that he was bypassed for overtime is difficult to believe.
Similarly, although we note the absence of evidence that complainant had a disciplinary record as well as his claim that workplace stress was exacerbating his diabetes, we find that he did admit to the time and attendance and failure to follow instructions infractions for which he was disciplined. We decline to find that it was the discipline, as opposed to complainant's own behavior, that created the alleged hostile work environment. Finally in regard to the slashed tire incident, complainant admits that he failed to bring this incident to management's attention.
We conclude that complainant failed to establish an inference of discrimination on any of the bases alleged and failed to refute the agency's legitimate, nondiscriminatory explanations for disciplining him. This conclusion, that the agency's actions were not based on complainant's protected classes precludes a finding that complainant was subjected to unlawful harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that complainant did not prove, by a preponderance of the evidence, that the agency violated Title VII or the ADEA. We affirm the agency's final decision.
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.
3.
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
September 16, 2009
__________________
Date
1 The record establishes that complainant has a service computation date of February 27, 1984 although it is unclear as to whether he has been a postal employee for the duration of his federal career.
2 Although complainant alleged racial discrimination, he identified his race as Hispanic, and the Commission considers "Hispanic" to describe a national origin.
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0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013