0120091449
07-16-2009
Joseph F. Marquis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph F. Marquis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091449
Agency No. 4C-190-0058-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 12, 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.
During the period at issue, complainant was employed as a Labor Relations
Specialist, EAS-19, at the agency's Philadelphia Bulk Mail Center (BMC).
On May 20, 2008, complainant filed the instant formal complaint. Therein,
complainant alleged that the agency discriminated against him on the
bases of race (Caucasian), sex (male), color (White), and in reprisal
for prior protected activity when:
1. on or about February 9, 2008, he was assigned more workload than
co-workers for March and April 2008;
2. on or about March 4, 2008, he was issued a "Five Day Letter;" and
3. on unspecified dates, the Manager has scheduled meetings and
subsequently cancelled the meetings.
On June 26, 2008, the agency issued a partial dismissal. Therein, the
agency accepted claim 1 for investigation. The agency dismissed claims
2 and 3 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim.
By affidavit dated July 15, 2008, complainant requested that the
instant complaint be amended to include the following claim: that he was
discriminated against on the bases of race, sex, color and in reprisal
for prior EEO activity when:
4. since on or about February 2008, he was subjected to hostile work
environment harassment including but not limited to: his supervisor (S1)
verbally abusing him, subjected to profanity in an email, screamed at
by S1 via telephone, being excluded from the phone list and S1 did not
meet with him to discuss his pay for performance evaluation.
On August 12, 2008, the agency granted complainant's request to amend
his formal complaint to include claim 4.
At the conclusion of investigation concerning claims 1 and 4, complainant
was provided with a copy of the report of the investigation and notice
of the right to request a hearing before an EEOC Administrative Judge or
a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On January 12, 2009, the agency issued
the instant final decision.
In its January 12, 2009 final decision, the agency concluded that
complainant failed to prove that he was subjected to discrimination as
alleged. The agency determined that complainant did not establish a prima
facie case of race, sex, color and reprisal discrimination. The agency
further found that assuming, arguendo, complainant established a prima
facie case of race, sex, color 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 the evidence in the
record did not establish that complainant was subjected to harassment
based on race, sex, color and retaliation. Specifically, the agency
found that the alleged harassment was insufficiently severe or pervasive
so as to create a hostile work environment.
Regarding claim 1, S1 stated that because the District Labor Relations
office was in the middle of moving to a new location, and that she
negotiated an agreement with the union at the regional level to postpone
all cases for the District Office. S1 further stated that the agreement
did not include cases for the Southeastern facility or the BMC, because
neither office was affected by the move. S1 stated that complainant
was assigned to the BMC facility and was not affected by the move.
S1 explained that complainant may be assigned more hearings than a Labor
Relations Specialist (LRS) domiciled at the District Office because
he has the responsibility for the BMC. The record reflects that when
complainant was on sick leave, S1 reassigned his cases to other LRS's in
order to avoid lost arbitration dates and the financial loss that goes
with the lost date. The record reflects that when complainant returned to
work from leave, he told S1 that he would take back the cases assigned
to a named LRS when she became aware of the problems with the case.
S1 also conveyed that complainant settled most of the cases returned
him and he did not arbitrate them.
The Manager Human Resources (M1) stated that she received communication
from complainant "alleging work load inequity between him and some of
his peers. Complainant feels his workload is greater. I arranged
a meeting between complainant and [S1]. [S1] explained reasons for
distribution of work amongst the Labor Relations Specialists. Also,
outcome of the meeting disclosed increase communication was needed
between complainant and [S1]."
Regarding claim 4, S1 stated that she has three other employees
"assigned to another facility (like [complainant]), and I discuss their
accomplishments with them via the telephone." S1 further stated that
because complainant does not work in the District Office where she is
domiciled, he "has not been down here (to my knowledge), I am not sure how
he is being subjected to a hostile work environment. On an average, I may
speak with him maybe once a month, if that often. I normally communicate
via Email." S1 acknowledged she forwarded an email from a named LRS (L1)
to complainant in which L1 "was expressing her frustration in putting on a
bad case that he prepared. I neglected to read the entire message and had
no idea she used some explicit language." S1 stated that she apologized
to complainant "because I did not read to the end of the messages. I was
merely trying to let him know the cases was being returned and why."
M1 stated that on April 11, 2008, she received an email from complainant
asking her to review the comments made by L1. M1 further stated that
after talking to S1, she attempted to get complainant and S1 "to discuss
all of his concerns, but to no avail on the complainant's part. At that
point, I had my [Secretary] set up a teleconference with the complainant,
his manager, and myself to discuss his concerns. Neither the Complainant
nor [S1] participated in this teleconference as previously scheduled to
occur on April 30, 2008 at 3:00 p.m." M1 stated that on May 9, 2008,
complainant advised her of his absence from work. M1 stated that on the
same day she asked complainant to provide her with three dates "in which
we could meet and discuss his concerns . . . outlined in his April 11,
2008 email message." M1 stated that on May 15, 2008, a teleconference
took place, and that all of complainant's concerns were addressed.
Specifically, M1 stated that S1 "explained her reasons for assigning
the work load she did. With regard to the inappropriate comments,
I made it very clear that such comments are not tolerated and [S1]
did the same and stated that she took appropriate action regarding the
contents in that email message."
Regarding the assertion that S1 screamed at complainant via telephone,
S1 stated that during the telephone conference, complainant repeatedly
complained about the cases assigned to him in February 2008 for March
and April 2008. S1 stated "I again explained to the Complainant why
cases were not assigned to the District Office, he did not want to accept
the explanation. I told my manager I had another scheduled meeting and
left her on line with the complainant." Specifically, S1 stated that she
told M1 "this is childish, I am going to my meeting. This teleconference
was called at the last minute and I had other meetings scheduled."
M1 stated that during the May 22, 2008 telephone conference, both
complainant and S1 "spoke at high levels and constantly interrupted
each other. I made both of them aware of their demonstrated verbal
behavior and told both of them that there are still communication issues
between the two. Although said in a professional manner, I do recall [S1]
saying something to the effect of, 'this is childish. This whole thing
is childish.' I reiterated to [S1] that the complainant has concerns
and we will address them by having one conversation. They both became
silent and did seem to listen carefully. We were able to conduct the
teleconference address the complainant's concerns."
Regarding the assertion that complainant was left off the telephone list,
S1 stated that she did not generate the list. Specifically, S1 stated
"a preliminary list was created by someone in the District Office.
I did forward a copy out to some people. I was not aware that he was
not on the list." S1 stated that the permanent telephone book would
be disseminated by another department of the District Office, and that
complainant's number was not on the list because he was not domiciled
in the District Office.
With respect to complainant's allegation that S1 did not meet with
him to discuss his pay for performance evaluation, S1 stated that she
conducted a telephonic interview regarding merit evaluations with all of
her direct reports who were not domiciled at the same facility where she
was located; and that complainant never indicated that he wanted to come
to her facility to meet in person and there was no requirement that a
face-to-face meeting be held. Specifically, S1 stated that complainant
"never complained about not coming down, he would have complained that
the others assigned to Southeastern were not required to come down."
On appeal, complainant contends that the agency erred in finding no
discrimination because it did not do a proper analysis of his reprisal
claims. Specifically, complainant argues that the alleged discriminatory
actions including the "assignment of volume of work impossible to complete
had a chilling effect upon his willingness to again engage in protected
activity. Notably, Appellant was so stressed by the Agency's conduct
that he was taken off work with shingles. Accordingly, the agency's
argument is without merit here." Complainant further states that S1
"admitted that there were no Agency rules and/or policies that governed
the assignment of cases to individual employees." Complainant argues that
S1 could have evenly distributed the work assigned to him "for the time
period March-April 2008 between the remaining Labor Specialist domiciled
in different locations to even out the work load. Appellant submits
that her failure to do so constituted retaliatory conduct."
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).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' 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).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
Finally, the Commission addresses complainant's above referenced appellate
arguments. The Commission determines that the record does not support
complainant's argument that the agency conducted an improper analysis
of complainant's claims as they relate to the basis of reprisal.
Therefore, after a review of the record in its entirety, including
consideration of all statements on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.1
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
July 16, 2009
__________________
Date
1 On appeal, complainant does not challenge an agency June 26, 2008
partial dismissal regarding claims 2 and 3. Therefore, we have not
addressed these issues in our decision.
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0120091449
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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