0120073942
11-19-2009
Kevin T. Knight, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Kevin T. Knight,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120073942
Hearing Nos. 520-2006-00015X, 520-2006-00412X
Agency Nos. 1B-065-0009-05, 1B-065-0006-06
DECISION
On September 17, 2007, complainant filed an appeal from the agency's
August 13, 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.; Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 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 initially
worked as a Part-Time Flexible Mail Handler at the agency's Southern CT
Processing and Distribution Center facility in Wallingford, Connecticut.
On June 12, 2005, complainant's supervisor (S1) admonished complainant for
being away from his designated work area on seven different occasions.
Complainant disputes the seven absences and believes it was only three.
S1 told complainant that in the future he needed to obtain permission
before leaving his work area. S1 then ordered complainant to work
a container of mail within one hour. Complainant asked S1 where it
was written that a mail container had to be completed in an hour.
Complainant claims that while seated at his desk, S1 replied "I'm
warning you." Complainant asserts that he felt threatened by S1, but
did not report the incident.
On June 22, 2005, complainant left his assigned work area to go to the
bathroom, visit the locker room, drop off a doctor's note in the manager's
office, and then mail a personal letter. Complainant failed to obtain
permission from S1 despite S1's prior instructions. Upon his return,
S1 notified complainant that he would be charged absence without leave
(AWOL) for a total of .30 units (approximately 18 minutes). That same
day, S1 determined that complainant's submitted light duty form was
incomplete because it did not identify how long complainant could
perform his accommodated tasks. S1 instructed complainant to punch
off the clock and return to work when he had a completed light duty
work form. The next day complainant submitted the same documentation.
The documentation was deemed insufficient and complainant was sent home.
Complainant presented the agency with the requested documentation on
June 24, 2005 and was allowed to work.
On August 30, 2005, complainant filed an EEO complaint (Agency
No. 1B-065-0009-05) alleging he was discriminated against on the basis
of disability (two herniated discs) when:
1. On June 12, 2005, complainant and his supervisor were involved in an
oral altercation causing complainant to fear a physical attack by S1;
2. On June 22, 2005, complainant was placed on AWOL status for .30 units
(approximately 18 minutes) and sent home due to insufficient medical
documentation; and,
3. On June 23, 2005, complainant was sent home again due to insufficient
medical documentation.
On or about September 3, 2005, complainant was converted to a Full-Time
Regular Mail Handler. Pursuant to the agency's collective bargaining
agreement, complainant was required to bid for a specific work assignment.
Complainant was given a selection sheet and was advised that if he did
not return the sheet by the deadline, he would be placed into a "residual"
position that was not selected by the other bidders. Complainant failed
to submit a timely bid before the September 22, 2005 deadline and was
placed into a position on Tour 1. Subsequently, complainant was given
another opportunity to bid on a specific position, but again did not
submit a timely bid before the October 16, 2005 deadline. On October 17,
2005, complainant was notified that he would be placed in a position on
Tour 1. Complainant did not report to that assignment and continued
to report for duty on Tour 3. On March 15, 2006, a meeting was held
between complainant, the agency's Labor Relations Specialist (LR1),
complainant's Tour 3 supervisor (S2), and a union steward to discuss
complainant's assignment. As a result of the meeting, complainant was
reassigned to the Tour 1 position.
On May 9, 2006, complainant filed a second EEO complaint (Agency
No. 1B-065-0006-06) alleging that he was discriminated against on the
bases of disability (two herniated discs), age (40), and reprisal for
prior protected EEO activity under the Rehabilitation Act when:
4. Effective April 1, 2006, complainant was transferred from Tour 3 to
Tour 1.
At the conclusion of the investigation, 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).1 Complainant timely
requested a hearing. The AJ held a hearing on July 19, 2007 and issued
a decision on August 7, 2007. In his decision, the AJ dismissed claim
(1) for failure to state a claim as complainant failed to show how S1's
admonishments and warning on June 12, 2005 constituted a cognizable claim.
The AJ then assumed arguendo that a cognizable claim had been made and
found that the agency had articulated legitimate, nondiscriminatory
reasons for its actions; namely, that S1 admonished complainant because
complainant was away from his designated work area on at least three
occasions on June 12, 2005.
As to claim (2), the AJ assumed arguendo that complainant had established
a prima facie case of discrimination and found that the agency had
articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that despite S1's prior instructions, complainant left his
designated work area without permission. Further, as to complainant being
sent home for submitting insufficient medical documentation as claimed in
(2) and (3), the AJ found that complainant's doctor had omitted the actual
number of hours complainant could perform particular work functions.
As a result, the AJ found that complainant failed to show that he was
subjected to discrimination as alleged.
As to claim (4), the AJ found that when complainant was converted from
a Part-Time Flexible Mail Handler to a Full-Time Regular Mail Handler
on September 3, 2005, he was required to bid on a specific position.
The AJ found that complainant when complainant did not bid on a specific
position, he was assigned to Tour 1. The AJ found that complainant
failed to show that any of the agency's reasons were pretextual. As a
result, the AJ found that complainant failed to show that he had been
discriminated against on the alleged bases.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that he never had the opportunity to fairly
present his case. Complainant believes it was unfair that he was the only
witness allowed to testify although others were available. Complainant
alleges that he was at a disadvantage because he was responsible to
procure witness statements and documentation without the power of
a subpoena. The agency disputes complainant's allegation that he was
not afforded a fair opportunity at the hearing to present his case and
requests that we affirm the final order.
ANALYSIS AND FINDINGS
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).
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant must
first establish a prima facie case 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. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); 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. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
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, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), S1
maintains that he observed complainant working the same container
of mail for an extended period, and while there is no work quota, an
hour was a reasonable amount of time to complete a container of mail.
Report of Investigation 1(ROI1), S1's Aff. at 1-2. Further, S1 states
that complainant had been working on the container of mail for over
two hours. Id at 2. Additionally, S1 denies threatening complainant;
rather, he asserts that he asked complainant to notify him when he left
his work section since S1 is responsible for knowing the whereabouts of
his employees at all times. Id.
As to claim (2), S1 claims that on the date in question, he observed
complainant enter the men's locker room and disappear for almost
20 minutes. ROI1, S1's Aff. at 2. Further, S1 asserts that when
complainant returned to his work area, complainant told him that he
had mailed a personal letter and submitted paperwork to the manager's
office. Id. S1 charged him with AWOL for failing to be in his assigned
work area without authorization. Id. As to sending complainant home
for insufficient medical documentation, S1 affirms that he instructed
complainant to punch off the clock after the Acting Manager (AM) reviewed
complainant's documentation and determined it was incomplete. Id.
AM states that the documentation was not specific enough to identify
how long complainant could perform his accommodated duties. ROI1,
AM's Aff. at 3. AM maintains that complainant was told the reason it
was unacceptable, and he was given an opportunity to use sick leave to
correct the situation. Id.
Regarding claim (3), S1 claims that complainant again provided incomplete
medical documentation, and, after conferring with AM, S1 asked complainant
to go home. ROI1, S1's Aff. at 3. S1 maintains that it is agency policy
to send employees home who submit insufficient medical documentation
because it protects the employee from further injury and the agency
from liability. Id. AM asserts that complainant was held to the same
standard as any other employee returning to work and complainant had
issues with following instructions and cooperating in obtaining the proper
documentation to return to work. ROI, AM's Aff. at 3. At the hearing,
complainant conceded that that the medical documentation he submitted
to the agency on June 22 and June 23 lacked the necessary information
regarding his work restrictions. Hearing Transcript (HT) at 188-190.
As to claim (4), LR1 claims that on September 3, 2005 complainant was
converted from a Part-Time Flexible Mail Handler (PTF) to a Regular
Mail Handler. Report of Investigation 2 (ROI2), LR1's Aff. at 2.
Complainant and the other PTFs that had been converted to regulars were
directed to select from the available residual full-time bid openings
by seniority. Id. LR1 asserts that complainant ignored the directions
and failed to select a position. Id. Consequently, complainant was
slotted into one of the remaining full-time positions on Tour 1. Id.
Complainant must now establish, by a preponderance of the evidence, that
the agency's articulated legitimate, nondiscriminatory reasons were
pretext for discrimination. We find that aside from complainant's
bare assertions, the record is devoid of any persuasive evidence
that discrimination was a factor in any of the alleged incidents.
Complainant has presented no evidence establishing that the agency's
reasons are pretextual. At all times, the ultimate burden of persuasion
remains with complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were not the real reasons, and that the agency
acted on the basis of discriminatory animus. Complainant failed to
carry this burden. Further, we find that complainant's claim that he
was not afforded a fair opportunity at the hearing to present his case
is without merit and without support in the record. Even if were to
apply a de novo standard of review, we would still find that the AJ and
agency properly found no discrimination.
CONCLUSION
We AFFIRM the agency's final order finding no discrimination.
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
November 19, 2009___
Date
1 The AJ found that complainant had failed to timely object to
the agency's partial dismissal of an earlier claim concerning his
paycheck. Hearing Transcript, Pp.16-43. On appeal before the Commission,
complainant does not present any arguments concerning this issue and
therefore, we decline to revisit the AJ's ruling.
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0120073942
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073942