0120081019_rev
02-19-2009
Lawrence J. Bennett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lawrence J. Bennett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081019
Agency No. 1J605000707
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 19, 2007 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. For the following
reasons, the agency's decision is affirmed in part, reversed in part
and remanded.
At the time of the events at issue, complainant was employed as
a Supervisor, Distribution Operations at the Fox Valley, Illinois
Processing and Distribution Center. Complainant alleged that the agency
discriminated against him on the bases of race (Caucasian), sex (male),
and reprisal for prior protected EEO activity when:
1. he was screamed at;
2. things were taken out of his office;
3. he was threatened with action;
4. rules were created that only applied to him;
5. he was delegated more duties than he could perform in an eight-hour
day;
6. he was embarrassed in front of his subordinates;
7. on March 5, 2007, he was issued a proposed Letter of Warning in Lieu
of Time Off Suspension (LOW);
8. on June 6, 2007, the decision was made that the LOW would remain in
his files for eight months; and
9. on March 19, 2007, complainant was told that he would no longer be
used as the backup Manager, Distribution Operations.
In its final decision, following its investigation into the allegations,
the agency found that complainant failed to demonstrate that similarly
situated individuals outside his protected classes was treated more
favorably in similar circumstances, and that the agency articulated
legitimate non-discriminatory reasons for its actions, which complainant
failed to prove were pretext for discrimination. In the alternative,
the agency dismissed claims 7 and 8 as moot.
Claims 1-6
The Commission has held that where a complaint does not challenge
an agency action or inaction regarding a specific term, condition, or
privilege of employment, the claim may survive as evidence of harassment
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). Whether the harassment is sufficiently
severe to trigger a violation of EEO statutes 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. See id.;
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994). Consistent with the Commission's policy
and practice of determining whether a complainant's harassment claims
are sufficient to state a hostile or abusive work environment claim,
the Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state a
harassment claim. See Phillips v. Department of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995).
Applying these standards, the Commission determines that the record
evidence does not indicate that complainant was subjected to a
discriminatory hostile work environment as alleged. Specifically, the
Commission finds that complainant has failed to establish that claims 1,
2, 3, 4, 5, and 6, even considered together and assumed to have occurred
as alleged by complainant, were so severe or pervasive as to alter the
conditions of complainant's employment. In that regard, we find that
the agency's decision that complainant failed to adequately prove a
discriminatory hostile work environment was proper.
Claims 7 - 9
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish
a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(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);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Upon review, the Commission determines that the agency articulated
legitimate, non-discriminatory reasons for its actions. With regard to
the letter of warning, the Manager of Distribution Operations (MDO)
stated that complainant was issued the letter of warning for failure
to follow instructions and failure to perform his supervisory duties in
a satisfactory manner. The letter itself details the circumstances of
these assertions. With regard to the decision that the letter of warning
would remain in complainant's file for eight months, the MDO stated
that this was the result of a settlement agreement between the Plant
Manager and complainant and his representative. Finally, with regard to
the decision that complainant would no longer be used as back-up MDO,
the MDO stated that she explained to complainant that he would no longer
be used in the position of backup manager due to his lack of supervisory
consistency with employees and his failure to complete daily paperwork
accurately. The Commission further finds that complainant failed to
present adequate evidence that, more likely than not, the agency's
articulated reasons for its actions were a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
finding of discrimination with respect to all claims raised by complainant
in the instant matter.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 19, 2009
__________________
Date
1 As we are affirming the agency's decision on the merits of the claims,
we do not need to address the agency's alternative procedural dismissals
of some of the claims.
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0120081019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120081019