0120073994
06-11-2010
Kenneth W. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Kenneth W. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120073994
Hearing No. 460200600085X
Agency No. 4G-770-0348-05
DECISION
On September 17, 2007, complainant filed an appeal from the agency's
August 23, 2007, 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
The issue presented is whether the decision of the Administrative Judge's
finding no discrimination is supported by substantial evidence of record.
BACKGROUND
On September 21, 2005, complainant contacted an EEO counselor and,
on December 13, 2005, he filed a formal complaint alleging that the
agency discriminated against him based on race (African American), color
(brown), sex (male), disability (physical-lower back), and in reprisal
for prior EEO activity. On December 23, 2005, the agency accepted (a),
(b), and (c) below, and the investigation considered only these issues.
Following an investigation on issues (a), (b), and (c) below, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
addressed the following issues1:
(a) on or about September 24, 2005, the agency reassigned complainant
from an Acting-Supervisor position at the Denver Harbor (Denver) facility
in Houston, Texas, to his craft position as a Letter Carrier at Greens
North, Houston (Greens);
(b) since September 24, 2005, he has worked reduced hours at Greens;
(c) on October 19, 2005, the Area Manager for Customer Services (AMJ),
issued complainant a seven-day suspension (later withdrawn in the
grievance process), dated October 8, 2005, for unauthorized absences
from Denver in September 2005;
(d) since September 24, 2005, he has not been allowed to park in the
disabled parking spaces near the door at Greens;
(e) on September 20, 2005, the Manager, Customer Services, Denver (MR),
approached him with a hostile attitude, ordered him out of the swing
room during his lunch break, became belligerent, and yelled at him;
(f) on September 28, 2005, MR gave him a pre-disciplinary interview
(Pre-D) and instructions were given to deny his accommodations2;
(g) from October 6, 2005, to October 27, 2005, he was denied an EEO
pre-complaint form;
(h) from October 6, 2005, to October 27, 2005, he was denied an
opportunity to meet with his representative in regard to the instant
matter; and
(i) on the second day of the hearing, complainant added a spin-off issue
that the representative's manager wanted proof that his representative
was attending a hearing.
On June 7 and July 11, 2007, the AJ held a hearing. On August 17,
2007, she issued a decision finding that the agency did not discriminate
against complainant as alleged. The agency accepted the AJ's finding
of no discrimination and agreed to implement the AJ decision.
The agency originally hired complainant as a Letter Carrier. Complainant
sustained an on-the-job injury in 1998, and when he returned to work, he
had medical restrictions that did not allow him to perform the position
of Letter Carrier. Thereafter, the agency assigned him various duties
in compliance with his medical restrictions. At the time of the events
herein, complainant served on a detail as an Acting Supervisor (AS)
at Denver beginning in May 2005, to temporarily replace supervisory
staff on leave. In early September 2005, he learned that the Denver
supervisors had returned and, later that month, he was assigned to his
craft position at Greens.
In his testimony, complainant stated that he was assigned as an AS
because of his medical restrictions and that he was removed because of
confrontations with MR.3 He contended that, on September 24, 2005, MR
asked him to use his (MR's) computer password to adjust the time of some
employees, and complainant refused to do so, contending it was illegal.
The next day, he contends, MR "approached him in a hostile manner" while
he was eating his lunch, stating MR "came into the swing room and leaned
over my chair, put his hand on the back of my chair, and began pretty
much shouting about wanting me to step outside so he could talk to me
about a conversation that I had had with the area manager." HT 19.
Complainant stated that MR issued him a proposed suspension, because he
had not notified MR to request leave when he left on two days in September
2007 (reduced to a discussion in the grievance process in January 2006).
Complainant explained his reasons for leaving without notification to
MR; however, he admitted that he called AMJ early in the morning about
a family emergency and that she directed him to contact and notify MR,
which he did not do. In the Pre-D, he told MR, "When I have an emergency,
the emergency dictates whether or not I can stay or go. The nature of
the emergency is what dictates staying or leaving, but the needs of a
family certainly outweigh the needs of the post office." HT 57.
Complainant also stated that, upon his transfer to Greens, he worked
reduced hours and was sent home everyday, his managers telling him that no
work was available within his restrictions. He stated that the manager at
Greens (MB) had promised to modify his work in accordance with his medical
restrictions, but that she did not do so. He acknowledged, however, that
he had received five job offers, all of which he accepted but refused to
perform, declaring that they were outside of the limitations imposed by
his doctors. At Greens, he claimed, he was not allowed to park in the
reserved spaces at the door, even though he had proper state-issued
handicapped parking tags. He stated that a manager told him those
spaces were reserved for carriers with medical restrictions to load
and unload their agency vehicles, and that he was assigned parking
at another location, farther away. Complainant also stated that MR
made remarks of a racial nature or criticized staff, referring to their
ethnic identifications but could not describe a concrete event, and was
otherwise vague. One witness testifying for complainant, of Hispanic
origin, stated the MR called her parents "beaners."
Agency managers testified about their actions in regard to complainant's
allegations of discrimination. AMJ testified that, in May 2005, MR
asked that complainant be assigned as an AS, because he (MR) needed a
temporary replacement for employees on leave. AMJ agreed and detailed
complainant as an AS until late September 2005, when a supervisor who had
been on leave returned. AMJ then moved complainant to Greens, a larger
facility, believing that work was available within his restrictions.
She stated that complainant called her on the day in September 2005 when
he wanted to leave the facility, and she advised him that he must first
speak to MR. Because complainant did not do so, AMJ issued the proposed
suspension. When complainant complained that MR violated the agency's
zero tolerance requirement on September 20 or 21, 2005, AMR sent a manager
from a different facility to investigate; however, the manager found the
claim was without merit, and the union accepted her conclusions. As to
complainant's performance, AMJ stated that she assigned him to undertake
audits at several facilities. She averred that complainant's work was of
low quality and that the managers at these facilities found that he had
a poor attitude, difficulties interacting with others, and was arrogant.
MR explained that he requested complainant's temporary detail as an
AS, because some supervisors were on leave. MR sent complainant for
training, provided in-house assistance, and trained him in agency systems.
MR denied that he made offensive remarks or acted in a hostile manner,
and denied that he yelled at complainant in the break room. He admitted
that he spoke firmly on his second request and that complainant simply
ignored him and did not follow his instructions. He stated that he held
a Pre-D with complainant in regard to two days when complainant left
the facility without notification to him or requested leave, and that
complainant simply refused to explain his reasons. After the Pre-D,
he requested that AMJ issue a suspension to complainant, and she did so.
MB, the manager at Greens, testified that she provided several modified
job offers to complainant within his restrictions; however, while he
accepted the jobs, he refused to perform the duties assigned, claiming
they were not within his limitations. She said that, after each offer,
complainant would return with new medical restrictions from one of
his several doctors that further limited his ability to perform the
jobs offered by the agency. When complainant refused to work these new
positions, his managers sent him home, stating that no work was available
within his restrictions. MB also affirmed that the parking spaces were
not for all-day use but were to be used for carriers with limitations;
she assigned complainant parking in another area.
AJ's Decision4
The AJ found that complainant established a prima facie case of
discrimination based on race and color, but not based on sex or reprisal,
and assumed that he established a prima facie case of disability. Next,
she held that the agency articulated legitimate, nondiscriminatory reasons
for its actions, e.g., "complainant was absent without permission, did not
perform well in his acting position, refused to talk with his managers,
needed accommodations for which there was insufficient work, and wanted to
park in a loading area [that] was reserved for individuals with medical
limitations to load and unload their postal vehicles." AJ's Decision,
p. 16. Next, she examined whether complainant demonstrated pretext and
found that he did not do so.
The AJ considered whether complainant's testimony that MR made negative
remarks about racial and minority groups, if true, contributed to the
agency's actions and found that complainant did not show that the MR's
bias influenced the suspension and confrontations with MR. In regard
to complainant's disability claim, the AJ noted conflicting evidence
as to whether complainant had a condition which substantially limited a
major life activity. The Injury Compensation Specialist (ICS) reported
that following a Fitness-for-Duty examination in September 2005 and the
denial of his claim for recurrence from the Department of Labor's Office
of Workers Compensation Programs (OWCP) on November 21, 2005, complainant
should have returned to his position as a Letter Carrier, with a 10-pound
lifting limitation.5 Nonetheless, complainant rejected the job offers
that were within the restrictions imposed by his current physicians,
who placed "rather restrictive limitations [which] further expanded as
the agency made modified job offers." AJ's Decision, p. 18.
The AJ did not agree with complainant's contention that he should have
continued as an AS. The AJ rejected this idea, finding that no actual job
called Acting Supervisor existed, in that employees served in AS positions
only temporarily to replace an absent supervisor. She also noted that
the agency had provided complainant opportunities to work in several other
positions, and his performance was poor and not acceptable. When no work
was available within his extant restrictions, he was sent home. The AJ
concluded that complainant had not shown that the agency had a vacant,
funded position to which he could have been reassigned. The AJ found
that complainant did not show that any other employee with state-issued
handicap stickers was allowed to park where complainant wanted to park.
The AJ therefore found that the agency did not discriminate against
complainant as he alleged.
The AJ also addressed the spin-off complaints raised by complainant. The
AJ advised the agency that its procedures for meeting the administrative
requirements of the Commission's regulations needed better coordination,
attention, and clarity. She found that the complainant did not show
substantial harm when he did not receive the counseling form on demand;
when the agency denied him an opportunity to meet with his representative;
or when his representative's manager asked for proof of the hearing.
CONTENTIONS ON APPEAL
Neither complainant nor the agency submitted comments on appeal.
The AJ requested that closing arguments be provided post-hearing in
written form, but only the agency provided one. The agency argued that
it articulated legitimate, nondiscriminatory reasons for its actions,
and that complainant did not show that any other employee similarly
situated to him was treated more favorably.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held. An AJ's credibility determination based on the demeanor of
a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony or
the testimony so lacks in credibility that a reasonable fact finder
would not credit it. See EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999).
Disparate Treatment Analysis - Race, Color, Sex, Disability
In general, where there is no direct evidence of discrimination, the
allocation of burdens and order of presentation of proof in a disparate
treatment case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). First, complainant
must establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981).
If the agency is successful, the final burden returns to complainant,
and he must demonstrate, by a preponderance of the evidence, that the
reason(s) proffered by the agency was a pretext for discrimination.
Id. at 256. To ultimately prevail, a complainant must demonstrate that
the agency's reasons for its actions were not its true reasons and
that its actions were influenced by legally impermissible criteria,
i.e., animus based on discriminatory factors. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Upon review of the record, we find that the determinations of the AJ,
that the agency articulated legitimate, non-discriminatory explanations
for its actions, and that complainant did not establish pretext, are
supported by substantial evidence of record. We find no basis to disturb
the AJ's decision in this regard.
Reasonable Accommodation
To the extent that complainant's allegations sound a claim of denial
of reasonable accommodation, we note that according to the Commission's
regulations, federal agencies may not discriminate against individuals
with disabilities and are required to make reasonable accommodation for
the known physical and mental limitations of qualified individuals with
disabilities, unless an agency can show that reasonable accommodation
would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p);
see Appendix. Here, each time complainant produced a new set of
limitations, the agency attempted to accommodate him by offering an
assignment within those limitations, which complainant then refused to
perform. We therefore find that the AJ's finding of no discrimination
is supported by substantial evidence of record. We find no basis to
disturb the AJ's decision in this regard.
Harassment
To the extent that complainant alleges harassment/hostile work
environment, we find that he did not show that the work environment
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. We find
the AJ's determination that complainant did not present probative evidence
that his workplace was "permeated with discriminatory intimidation,
ridicule and insult that [was] sufficiently severe or pervasive to alter
the conditions of [his] employment," to be supported by substantial
evidence of record. See Harris V. Forklift Systems, Inc., 510 U.S. 17,
22 (1993). We find no basis to disturb the AJ's decision in this regard.
Spin-off Complaints
Our regulations state than an agency may dismiss a complaint that "alleges
dissatisfaction with the processing of a previously filed complaint."
29 C.F.R. � 1614.107(a)(8). The Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 5, � III.F,
(November 9, 1999) states that where a complainant is dissatisfied with
the processing of his pending complaint, he should be referred to the
agency official responsible for the quality of complaints processing.
The responsible official(s) should attempt to resolve the matter, and
if unable to do so, the official must add the complainant's concerns
and any agency action taken to the complaint file of the underlying
complaint. Id. In cases where the complainant's concerns are not
resolved informally with the agency, the complainant may present those
concerns to the EEOC AJ or raise them on appeal to the Commission.6
An agency is required to afford a complainant a "reasonable amount
of official time" to pursue his or her EEO complaint if the employee
is otherwise on duty. 29 C.F.R. � 1614.605(b). Also, the agency
is required to allow an employee designated as a complainant's
representative "a reasonable amount of official time, if otherwise
on duty," and the agency must grant official time to a complainant
and his/her representative when either is required by the agency or
the Commission. Id. According to EEO-MD-110, an agency may aggregate
the total time granted to representatives and may restrict the overall
hours of official time afforded to a representative. In its past cases,
the Commission has held that it "considers it reasonable for agencies to
expect their employees to spend most of their time doing the work for
which they are employed." MD-EEO-MD-110, Chap. 6, � C.4; see Morman
v. Department of the Air Force, EEOC Appeal No. 07A10059 (June 27,
2002).7 We do not find that the agency acted unreasonably in connection
with these matters.8
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final order, because the Administrative
Judge's finding of no discrimination is supported by substantial evidence
of record.
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
June 11, 2010
Date
1 On March 17, 2006, the agency issued a "Correction" to its original
acceptance/dismissal letter. The record does not reveal how the issues
dismissed by the agency were revived before the AJ. Nevertheless, the
issues identified are those issues upon which the AJ took evidence and
issued a decision.
2 When questioned about what accommodations he referred to, complainant
did not identify or remember specifically. See Hearing Transcript (HT)
43 ("I'm not exactly sure what you're speaking of."); HT 65 ("I don't
remember very much about a whole lot of things...."); and HT 77 ("When
you say 'accommodations,' can you be a little more specific?").
3 We note that complainant refused to provide an affidavit for the
ROI, did not provide a closing argument to the AJ, and did not submit
comments on appeal; the agency took his deposition, but upon objection
by complainant's representative, the AJ excluded the entire deposition.
4 At the end of the hearing, the AJ noted that three witnesses were
not available for the hearing, and she allowed the parties to pose
interrogatories to them; however, none of the missing witnesses responded,
and the AJ issued her decision based on the evidence before her.
5 At the end of September 2005, complainant filed a claim with
OWCP for recurrence of his accepted injury and claimed that he was
totally disabled and unable to work. After OWCP's denial of his claim,
complainant accepted a position on December 29, 2005 without objection,
with his only restriction being that he lift no more than 10 pounds.
6 In this matter, the record does not contain information that agency
officials had an opportunity to address issues (g) and (h), or that issue
(i) had been referred to agency officials. The AJ is reminded of the
proper handling of spin-off complaints.
7 The right to challenge an agency's denial of official time belongs to
the complainant, not the representative. Wildberger v. Small Business
Admin., EEOC Request No. 05960761 (October 8, 1998); see Pollack
v. Department of the Treasury, EEOC Appeal No. 07A10039 (March 8, 2002).
8 Complainant, through his representative, sought sanctions against
the agency, arguing that the agency did not act in good faith during
settlement negotiations. All such discussions between the parties are
confidential and not relevant to subsequent activities.
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0120073994
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073994