0120131225
06-24-2013
Joseph R. Fracek, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Joseph R. Fracek,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131225
Hearing No. 510-2011-00377X
Agency No. 4H-335-0277-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 10, 2013 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Sales, Service, Distribution Associate at the Agency's Page Field Station in Fort Myers, Florida.
On December 29, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of sex (male), age (over 40), and in reprisal for prior EEO activity when:
1. on September 3, 2010, he was issued a Letter of Warning;1
2. on October 8, 2010, he was issued a Notice of 7-Day Suspension;2 and
3. on December 29, 2010, he was issued a Letter of Warning.
After the investigation of the instant formal complaint, 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. By an Order entitled "Order of Dismissal," the AJ cancelled the hearing request on the grounds that Complainant did not respond to discovery requests. The AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its January 10, 2013 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of sex, age and reprisal discrimination. The Agency further found that even if Complainant established a prima facie case of sex, age and reprisal, the Agency found that Agency management 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 of record did not establish that Complainant was subjected to harassment based on sex, age 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, the Acting Manager during the relevant time, was Complainant's direct supervisor. The supervisor stated that on September 3, 2010, she issued Complainant a Letter of Warning for Improper Conduct and Failure to Follow Instructions. Specifically, the supervisor stated that on August 27, 2010, she instructed Complainant to collect a late fee from a postal customer. The supervisor stated, however, she noted at the close of the business day while reviewing the SOX records that the late fee was not collected. The supervisor stated that "SOX is a financial documentation program, it really doesn't have anything to do with the employee. I referenced it because I was verifying the post office box activity for the day, which is required by the supervisor daily. [Complainant] acknowledged my instruction. At no time did [Complainant] ask for assistance on collection this fee nor did [Complainant] inform me that he hadn't collected the late fee."
The supervisor stated that during an investigative interview, Complainant stated "since the POS didn't request the fee he didn't collect the fee, even though he was given instructions to collect the fee." In the September 3, 2010 Letter of Warning, the supervisor placed Complainant on notice that failure to follow instructions "has resulted in a loss of revenue for the U.S. Postal Service." Furthermore, the supervisor stated that Complainant's sex, age and prior protected activity were not factors in her determination to issue him a Letter of Warning.
Regarding claim 2, the supervisor stated that on October 5, 2010, she issued Complainant a 7-Day Suspension for Improper Conduct and Failure to Follow Instructions. The supervisor stated at that time, Complainant was a qualified Passport Acceptance Agent after having completed training on proper passport application acceptance procedures in April 2009. The supervisor further stated that on May 19, 2010, a compliance review was conducted by the Department of State and Complainant had initialed that he reviewed a scorecard relating to this matter. The record reflects that securing applications was specifically noted on the scorecard and all Sales, Service and Distribution Associates, including Complainant, were instructed to secure information in a new cabinet at the Page Field Station.
The supervisor stated that on September 2, 2010, a customer came in the post office looking for Complainant as he had assisted him with his passport application the previous day. The supervisor stated that because Complainant was not at work that day, she asked the customer if she could assist him. The supervisor stated that the customer handed her "his passport application which was signed by the complainant and date-stamped the previous day. I asked the customer how he had gotten the application [and] he stated 'the guy gave it back to me yesterday so I could go get my drivers' license renewed. The customer also stated the Complainant told him to just bring everything back to him and he would take care of it."
In the October 5, 2010 Notice of 7-Day Suspension, the supervisor placed Complainant on notice that returning a completed passport application was a violation of the passport application procedures and "such a violation could cause the Postal Service to lose its certification to process passports." The record further reflects that during a September 14, 2010 investigative interview, Complainant was unable to provide a satisfactory explanation for his actions.
The supervisor stated that Complainant was in violation of Sections 665.13 and 665.15 of the Employee and Labor Relations Manual. The supervisor stated that she also took Complainant's September 2, 2010 Letter of Warning into consideration before issuing the Notice of 7-Day Suspension.
Regarding claim 3, the supervisor stated that on December 29, 2010, she issued Complainant a Letter of Warning for continued unsatisfactory attendance. The record reflects that in the December 29, 2010 Letter of Warning, the supervisor noted that Complainant was absent on the following dates: January 4, 5 and 6, 2010 (24 hours); May 18, 19 and 24, 2010 (24 hours); June 28 and 29, 2010 (16 hours); November 30, 2010 (8 hours); and December 1, 2010 (8 hours).
Further, the supervisor stated that on July 7, 2010, she had a discussion with Complainant concerning his attendance. The supervisor stated that Complainant "is a 17-year employee who earns 104 sick leave hours a year; as of 12/08/2010 his earned sick leave hours [for the entire 17-year period] would be 1768 hours. As of 12/31/2010 his balance was 30.98 hours. Moreover, the supervisor stated that she did discriminate against Complainant based on his sex, age and prior protected activity.
Complainant, on appeal, argues that the AJ committed harmful procedural error when she failed to timely respond to the Agency's Motion for Protective Order in which the Agency declared it would not respond to Complainant's discovery requests without an order from the AJ; failed to provide a respond to his motion to amend his complaint; and misinterpreted his representative's response to her Order grating the Agency's Motion to Compel discovery "as a failure to comply with her Order and dismissed the complaint s a sanction."
Further, Complainant argues that the Agency's "articulation of its stated reasons for the actions taken against [Complainant] are observably phony and a pretext to reprisal discrimination."
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part 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 Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
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. 05970727 (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 record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his sex, age and prior protected activity.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. 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.
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 (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 (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
June 24, 2013
__________________
Date
1 As a result of a grievance, the September 3, 2010 Letter of Warning was removed from Complainant's personnel file.
2 As a result of a grievance, the October 8, 2010 Notice of 7-Day Suspension was reduced to an official discussion.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131225
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131225
8
0120131225