0120103782
04-19-2012
Joseph A. Ladd, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Joseph A. Ladd,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120103782
Hearing No. 532-2009-00102X
Agency No. 4C-440-0009-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 26, 2010 final order 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Window Clerk at the Agency's Post Office in Bay Village, Ohio. In November 2007, Complainant and other co-workers submitted a petition to the District Manager requesting a meeting regarding the work environment at the Bay Village Post Office. In December 2007, a task force convened by a workplace environment analyst conducted a workplace climate assessment. The task force interviewed employees, including Complainant and members of management. Based on the assessment, the analyst believed that Complainant and the Acting Manager (AM) should not work together alone or be around each other alone. He concluded that Complainant and AM were mutually hostile towards each another and that Complainant was equally at fault for the hostility. Further, employees reported that AM was gruff, abrasive, and did not sufficiently explain his orders. As a result, management began coaching AM on his communication skills
On March 26, 2008, the assessment team made a follow-up visit and found that the work climate had improved due to changes in management. The Branch Manager had returned from a detail assignment in January 2008, and AM was working a detail assignment at another facility. On October 3, 2008, AM returned to the Bay Village Post Office. Complainant believed that AM's return violated the recommendations of the workplace environmental analyst and placed him in harm's way.
On January 13, 2009, Complainant was issued a Letter of Warning for failing to perform his total job responsibility. Complainant discovered a bucket of collection mail in December 2008 and failed to notify AM, the morning supervisor that day. As a result of Complainant's inaction, AM was unable to determine the source of the mail. The Letter of Warning was later reduced to an official discussion.
On November 21, 2008 (and amended on February 3, 2009), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Caucasian), sex (male), color (White), and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, when management issued him a Letter of Warning and he was subjected to daily hostility, intimidation, and constant animosity which management failed to investigate appropriately.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion and issued a decision without a hearing on August 10, 2011.
In her decision, initially the AJ determined that Complainant had failed to establish that he was subjected to a discriminatory or retaliatory hostile work environment. Specifically, Complainant failed to establish that any of the unwanted conduct he was subjected to was based on his protected classes. Even assuming all of Complainant's allegations as true, the AJ found that the record contained no evidence to establish that AM's behavior towards Complainant or management's actions, or lack of action, in response to Complainant's complaints about the work climate at the Bay Village Post Office were based on discriminatory or retaliatory animus. As a result, the AJ held that Complainant had not been subjected to a hostile work environment as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing. Complainant contends that the Agency has ignored its own Zero Tolerance Policy on harassment and his complaints about the work environment at the Bay Village Post Office. Complainant alleges that management backed up AM and did not believe his allegations. Finally, Complainant contends that evidence of the discriminatory treatment he received has been ignored. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact, 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. 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's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 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. at 255. An 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission notes that when a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) he belongs to a 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 his statutorily protected class; (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; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Here, Complainant asserted that based on his statutorily protected classes, management continuously subjected him to a hostile work environment. Complainant alleged numerous incidents of what he believed to be discriminatory and retaliatory harassment. However, construing the evidence in the light most favorable to Complainant, the Commission finds that Complainant has not shown that he was subjected to a hostile work environment. Specifically, the Customer Operations Manager affirmed that Complainant's complaints about the work climate and AM were investigated, but management found no evidence to support his harassment allegations. ROI, at 144. Additionally, the workplace environment analyst determined that Complainant had a great deal of personal animosity towards AM and AM's communication style with all employees could be improved; however, there was no evidence that AM intentionally created a hostile work environment. Id. at 170. To improve the overall workplace climate, the Agency began coaching AM to improve his communication style and brought back the Branch Manager to monitor the relationship between AM and Complainant. Id. at 171. Additionally, pursuant to the workplace assessment recommendation, Complainant was not scheduled to work alone with AM. Id. at 144.
Finally, as to the Letter of Warning, the record reveals that it was issued because in December 2008, Complainant found a bucket of mail and dumped it into a collection hamper without alerting a supervisor. ROI, at 128. Management stated that had Complainant brought the matter to the attention of the morning supervisor, he could have investigated its sources or had it processed. Id. The Letter of Warning was later reduced to an official discussion regarding the employee's responsibility to notify management of any irregularities in the standard operating procedures.
Construing the evidence in Complainant's favor, the Commission concludes that Complainant has not shown that he was subjected to a hostile work environment. While the record strongly suggests that Complainant and AM had a contentious work relationship, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75. 81 (1998). Further, to the extent Complainant is alleging disparate treatment with respect to his claims, he has not shown that the Agency's reasons for its actions as articulated above were a pretext for discrimination or reprisal. As a result, the Commission finds that Complainant has not established that the Agency's actions were in violation of Title VII.
CONCLUSION
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 order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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
April 19, 2012
Date
2
0120103782
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120103782