Kendyll D. Campbell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 11, 2009
0120083980 (E.E.O.C. Feb. 11, 2009)

0120083980

02-11-2009

Kendyll D. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Kendyll D. Campbell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083980

Agency No. 4E-640-0004-07

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's August 20, 2008 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 Mail Processing

Clerk, at the agency's Blue Valley Branch in Shawnee Mission, Kansas.

On December 18, 2006, complainant filed the instant formal complaint.

Therein, complainant alleged that the agency discriminated against him

on the basis of reprisal for prior EEO activity when:

(1) since 2002, he has been subjected to hostile work environment

harassment;

(2) his job was "unilaterally changed" on October 17, 2006, after

reporting the harassment;

(3) on October 25, 2006, he became aware that he was not scheduled to

work overtime on his non-scheduled day; and

(4) on November 10, 2006, he was issued a Letter of Warning charging

him with Inappropriate Behavior to Another Employee.

At the conclusion of investigation, 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 but subsequently withdrew his request. Consequently,

the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).

In its August 20, 2008 final decision, the agency found no discrimination.

The agency found that complainant did not establish a prima facie case of

reprisal discrimination. The agency further found that assuming, for the

sake of argument, complainant established a prima facie case, management

articulated legitimate, nondiscriminatory reasons for its actions which

complainant did not prove were pretext for reprisal discrimination.

With respect to complainant's harassment claim, the agency found that the

evidence in the record did not establish that complainant was subjected

to harassment based on prior protected activity. 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 Branch Manager (BM) stated that complainant and

an identified co-worker (C1) had disagreements in which one accused the

other of not working under the contract or being less than diligent in

the performance of their duties. BM stated that during the relevant

time, complainant was union vice president, and C1 complained that

complainant "was on the phone or conducting union business, or working

at a reduced pace to cause them waiting time. Since rural carriers

are on the evaluated pay system this caused tension." BM stated that

when complainant and C1 claimed they were working in a hostile work

environment, he contacted the Mid American District Intervention

Professional (IP) to conduct an investigation. BM stated that the

following IP's investigation, it was determined that a witness had heard

complainant make an inappropriate comment to C1 "on the workroom floor.

Also it was agreed that we should move [Complainant] from zone 13 to zone

9 parcels since we cannot move [C1]. Also [Complainant] is a zone 9 and

13 clerk and would not violate the National Agreement." With respect

to complainant's allegation that BM told identified agency employees to

harass complainant, BM denied it. Specifically, BM stated "it is not

accurate because I have never told anyone to harass another employee."

Complainant's immediate supervisor (S1) stated that when complainant and

C1 alleged that "they felt like they were threatened in their written

statements, [IP] was called to conduct an investigation." S1 stated that

as a result of the investigation, complainant and C1 were separated into

different work areas. With respect to complainant's allegation that he

pleaded for S1 to actively intervene to stop C1 and another co-worker (C2)

from subjecting him to harassment but S1 refused to address his concerns,

S1 denied it. Specifically, S1 stated "This is not accurate. I have

addressed concerns on both sides. [C1], [C2] and [Complainant] have a

history of doing things to get under each other's skin. It definitely

goes both ways."

Regarding claim (2), BM stated that complainant's job was not unilaterally

changed. Specifically, BM stated that complainant "is a zone 9 and

13 schemed clerk. He simply went from the rural section (zone 13),

to the city section zone 9. Same location, same duties, same hours.

Only he would not be involved with the employee he alleges causes him

to work in a hostile work environment."

S1 stated that complainant's allegation that his job was unilaterally

changed was not accurate because complainant's job "was not changed.

He still does the same job just in zone 9, not zone 13. His bid job is

both 9 and 13 distribution clerk. Before he worked in zone 13, he did

the same job in zone 9." S1 stated that following the investigation

of complainant's hostile work environment allegation, management made a

decision to move complainant "was based on separating him and [C1] during

the normal work day to defuse a hostile work environment. It should

be noted that this has worked." Furthermore, S1 stated that he did not

discriminate against complainant based on his prior protected activity.

The Supervisor, Customer Service (SCS) stated that complainant's job

duties "were not changed. He was just moved from Zone 13, to Zone

9, which is allowed within the contract." SCS further stated that

complainant was just switched from Zone 13 to Zone 9 "to prevent further

problems between [C1] and [Complainant]."

Regarding claim (3), S1 stated that complainant "was scheduled and did

work on October 26, 2006, his non-scheduled day."

Regarding claim (4), S1 stated that he was the deciding official to

issue complainant a Letter of Warning (LOW) for exhibiting inappropriate

behavior to another employee. Specifically, S1 stated that on October

7, 2006, complainant said "Fuck you" to C1 on the workroom floor.

S1 further stated that an independent investigation into the incident was

made "which provided a witness to what had been said." S1 stated that

complainant was in violation of Section 665.16 "Behavior and Personal

Habits" of the Employee Labor Relations Manual Handbook (ELM).

SCS stated that he was not in the office when the incident occurred and

was informed of it when he returned to work. SCS further stated that on

October 11, 2007, he took an oral statement from a rural carrier "who

witnessed the incident and who declined to make a written statement I

assumed for fear of retaliation from [C1]."

The record contains a copy of ELM, Section 665.16 "Behavior and Personal

Habits." Therein, Section 665.16 provides that "employees are expected

to conduct themselves during and outside of working hours in a manner

that reflects favorably upon the Postal Service."

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.

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.

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 (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

February 11, 2009

__________________

Date

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0120083980

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083980