0120130443
03-27-2013
Mahesh A. Patel, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Mahesh A. Patel,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120130443
Hearing No. 460-2012-00050X
Agency No. 4G-770-0233-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 21, 2012 final action 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Memorial Park Station in Houston, Texas.
On August 18, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race (Asian-American), national origin (Indian), and in reprisal for prior EEO activity when:
1. on May 6, 2010, he was directed to pull down Route 2402;
2. on May 13, 2010, he was falsely accused of walking and talking, instead of pulling Delivery Point Sequence (DPS) errors;
3. on June 11, 2010, he was lectured by his supervisor about operation 722;
4. on June 22 and 23, 2010, he was subjected to monitoring of his office performance;
5. on August 9, 2010, he was refused a Form 13;
6. on August 10, 2010, he was told not to talk about various subjects including politics, sports and family on the workroom floor;
7. on October 22, 2010, his supervisor took 11/2 hours off his route;
8. on December 10, 2010, his supervisor yelled and screamed at him to go back to his case and made sarcastic remarks about his credibility;
9. on January 15, 2011, his supervisor yelled at him;
10. on June 3, 2011, he was not allowed to carry his entire route after his EEO time was cancelled, then forced to carry 11/2 hours of auxiliary work on Route 2432, yelled at and told that he took only 30 minutes of auxiliary work instead of the 11/2 hours. A Part-Time Flexible (PTF) from another station was then given auxiliary work from Route 2419 instead of him being asked whether he wanted to carry it;
11. on June 9, 2011, his supervisor talked to him in an unprofessional manner, threatened him with discipline, and accused him of threatening her with scissors;
12. on June 10, 2011, effective June 25, 2011, his route was moved from Crew 3 to Crew 5;1
13. on June 23, 2011 and July 15 and 28, 2011, he was yelled at by management;
14. on July 13, 2011, his supervisor yelled at him and assigned him to Route 2428;
15. on July 27, 2011, he was badgered by the FSS Coordinator and then forced to carry a 4th bundle in an unsafe manner, and when he complained about it they told him to resign; and
16. on or around September 27, 2011, he was issued a Letter of Warning which was subsequently removed on September 27, 2011.2
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 14, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of race, national origin, and reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on race, national origin, and retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant's supervisor stated that in regard to claim 1, Route 2402 was not Complainant's primary route. Specifically, the supervisor stated that on May 6, 2010, Route 2402 "was open (no regular carrier) and pivoted out to carriers for undertime and overtime in order from the Overtime Desired List (tracking list). [Complainant] was assigned to pull down Rt. 2402." The supervisor further stated that as a supervisor "it was my duty and responsibility to give instructions to ensure the mail is cased, carried and delivered to our customers."
Regarding claim 2, the supervisor stated that she instructed Complainant to make a move on operation 743 "to thumb through tray 1 and find the 4 errors. [Complainant] stopped looking and was engaged in conversation with [two named carriers]." The supervisor stated that after one minute or so, she instructed Complainant to go back to complete his work.
Regarding claims 3 and 4, the Station Manager stated that he does not recall the alleged discriminatory incident on June 11, 2010. The Station Manager stated, however, that he has observed Complainant "engaging in EEO activity while he is on Operations 722, an operation during which he is required to perform office duties, i.e., casing mail. I have had to caution him on several occasions. I do not specifically recall this alleged event or, as he alleges, other employees were engaged in similar time-wasting practices. I submit that the Complainant is not authorized to follow me and observe my actions and would have no definite knowledge of any activities in which I engaged after talking to him. He was engaging in actions contrary to both regulations and my instructions."
Further, the Station Manager stated that Complainant "has no official capacity as an EEO consultant or advisor. Houston District policy prohibits him from 'drumming up business' as a representative. As an hourly craft employee, his base operation when beginning tour on the time clock is 722, Office Operation. During this time, under Handbook M-41, City Delivery Carrier Duties and Responsibilities, including but not limited to Sections 112 and 121, the Unit Standard Operating Procedures, and Houston District EEO Policy...when on EEO meeting time, employees are required to be on Operations 632 or 632-99 as a representative. The Complainant submitted no request, and did in fact respond that he was on Operation 722. This could very well have resulted in corrective action. As stated, the Complainant as no official capacity as either an EEO Consultant or advisor."
Regarding claim 5, the supervisor denied yelling at Complainant and refusing to provide him with PS Form 13.3 Specifically, the supervisor stated that Complainant's rights "was in no way [impaired]. [Complainant] was instructed to return to his case 4 or 5 times. [Complainant] was told repeat[ed]ly that he was disrupting the contractual overtime scheduling process. [Complainant] failed to follow instructions by continuing walking back up to the stand up desk asking for future dated EEO activities. [Complainant] left his case without authorization from the supervisor to talk w/[Station Manager]."
Further, the supervisor stated "I do NOT refuse the Form 13 to anyone. [Complainant] himself received the form 13 on the same date of request, which was signed by me. [Complainant] was scheduled to meet with a union representative within 24 hours [emphasis in its original]."
Regarding claim 6, Complainant alleged that on October 22, 2010, he was talking to other employees in his mother's language when a named employee passed a comment that they should be talking in English in a light hearted manner. Complainant further alleged that he jokingly told the named employee that they could talk in their language in a federal workplace and that most of them do not understand the amendments to the Constitution. Complainant alleged that at that point the supervisor too him to the back dock area and threatened him with disciplinary action and also told him not to talk about various subjects including politics, sports and family on the work room floor.
The supervisor stated that on October 22, 2010, Complainant "quote aloud, 'You Americans!' 'You Americans don't know nothing.' Again, he stated, 'You Americans don't know nothing.'" The supervisor stated at that point a named employee "jumped into the conversation defining Americans . . . " The supervisor stated that she had a private discussion with Complainant concerning this matter because he "was displaying inappropriate conduct, failing to comply w/them."
Furthermore, the supervisor stated "no one was told they could not talk on the work room floor. Not even [Complainant]. It was subject and topic of discussion that was addressed with [Complainant]."
Regarding claim 7, the supervisor stated that she took 1 1/2 hours off Complainant's route on August 10, 2010 because Complainant "did not know exactly what time" he worked his route.
The Station Manager stated that he took "extreme exception" to Complainant's allegation. Specifically, the Station Manager stated "as a manager I observe, monitor, coach and train supervisors. Very rarely will it become necessary for me to engage in assigning mail, which is the duty of a Carrier Supervisor. I do not interfere with the supervisor in the performance of their duties unless it is clear to me that the required results will not be obtained. The Complainant often appears in my office door or approaches me without invitation. I am not always able to give him my full attention while I am performing my duties. I absolutely reject the allegation in which I am accused to have 'lied.' It would be entirely improper of me to make such a statement about the Complainant. However, I state for the record that his remarks are not true. He has demonstrated in the past that he has the capacity to stay on the clock much longer than his duties require, exceeding his earned workload and authorized time. The supervisor is required to control work hours, the use of penalty time, and to attempt to schedule all carriers to return to the office before 7:00 PM."
Regarding claim 8, the supervisor stated that Complainant "never ever makes his office leaving time. [Complainant] was addressed to return [to] his case several times. [Complainant] had not started casing the mail he had already had at his case already. Therefore [Complainant] was instructed to stay at his case and start casing what he had at his case [emphasis in its original]."
Regarding claims 9, 11, 13, and 14, the supervisor denied yelling at Complainant on January 15, 2011, June 9 and 23, 2011, and July 13, 15, and 28, 2011. Specifically, the supervisor stated "I don't yell and scream [Complainant]. I communicate with [Complainant] as he does with me. [Complainant] does not like receiving instructions from supervisors."
The Station Manager stated that he had no recollection of observing the supervisor yelling at Complainant on January 15, 2011. Specifically, the Station Manager stated "I have never observed [supervisor] 'yell' or 'scream' or act 'tyrannical' with the employees. [Supervisor] is a supervisor and is required to give instructions, which the employees, including Complainant, may not always appreciate. I have, however, observed and become aware of an apparent unhealthy and unaccountable fixation which the Complainant has developed for [supervisor]. No actions were taken. The Complainant is known for taking exception to his instructions in almost every case, and engaging in arguments. Arguing with employees is not among the duties of supervisors, and they need not tolerate such behavior."
The supervisor denied threatening Complainant on June 9, 2011. The supervisor stated that on June 9, 2011, Complainant was working on Route 2402 when he informed her that he had an EEO mediation at 10:00 a.m. The supervisor stated that Complainant reported to work at 7:30 a.m. and he "projected office time to case that route totaled 2 hours and 16 minutes. [Complainant's] route was also showing -0:30 undertime due to the mail volume. [Complainant's] instructions were to case the route and pull it down for the carriers that was assigned to carrier his route for that day. [Complainant] felt as if he didn't have enough time to case the route and pull it down. He stated while pointing the scissors in my face, that he didn't have enough time. I informed [Complainant] that he should first put the scissors down and to stop pointing the scissors at me while he was speaking to me. I then gave [Complainant] instructions to have his route ready by 10:00am, which was more than enough time to complete his assignment. I did not threaten [Complainant] with disciplinary action."
The supervisor stated that on June 23, 2011, Complainant was given instructions pertaining to his route just like other carriers. The supervisor further stated "past practice at Memorial Park has been that the carriers call back for instructions when there is a hindrance on their route such as dogs on their route, construction blocking the line of travel, numerous blocked boxes, flooding, etc. etc. [Complainant] stated nothing was wrong. There was no hindrance on his route, and he was instructed to follow his instructed given to him before he left the station. I did not hang up on [Complainant]. He was told to follow instructions given to him that morning, and we ended the call."
The supervisor stated that in regard to Complainant's allegation that on July 13, 2011, the supervisor yelled at him and assigned him to Route 2428, she had no recollection. Specifically, the supervisor stated "I am not aware of any such agreement made between [manager] and [Complainant]."
Regarding claim 10, the supervisor stated that on June 1, 2011, Complainant worked on his assigned Route 2404. The supervisor further stated that she explained to Complainant that a named carrier had medical restrictions which restricted her from carrying a pouch and "the hour that was given to [named carrier (C1)] did not require as pouch, therefore I had to abide by her medical restrictions and give her the hour off of route 2405. I also explained to carrier [Complainant] that [another named carrier] could not do any walking and could only carry mounted routes. Route 2405 was not [Complainant's] assigned route for that day. Route 2405 was on his brace, however he was not entitled to automatically receive route 2405. [Complainant] in on the OTDL (over time desires list), he was not forced to carry, he chose to carrier an 1 1/2 off of route 2452 for his overtime. At any given time, if management does not do what [Complainant] says, he feels as if we are wrong."
Regarding claim 15, the Station Manager stated that Complainant has been seen "constantly argumentative and disputative. Memorial Park Station has 49 routes, each with a regular carrier, and a technician for every five routes. Complainant is the only carrier at the station who chose to pretend that his assigned duties were too difficult or complicated or unsafe. As I recall the conversation, I told [Complainant] that the problem was not going to go away, and that the only way he could avoid his duties was to resign."
Regarding claim 16, the supervisor stated "I am unaware of and have no information regarding a Letter of Warning dated September 14, 2011 for [Complainant]."
The Station Manager stated that he had no knowledge of the subject Letter of Warning. Specifically, the Station Manager stated "I cannot recall the specifics. I cannot even positively confirm that the complainant was issued a letter of warning; however it would have not been on or about September 27, if it was resolved on or about September 27."
The Agency fully implemented the AJ's decision in its final action.
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues that he is a letter carrier "by profession and not a practicing lawyer and therefore I do not fully understand the complexities of all legal matters. The agency has a battery of lawyers in its employment and these lawyers take advantage of lack of legal knowledge on part of carriers and other craft employees to dismiss complaints without a Hearing by introducing motions." Complainant further argues that the Agency was motivated to retaliate against him "due to my history of EEO activity."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
Moreover, the AJ properly determined that Complainant has not demonstrated that coworkers who are other than in his protected categories were treated better. The AJ also found that Complainant did not present any evidence that there were any racial epithets, innuendos, or jokes that would reflect any displays of bias at the work facility. The AJ determined that most actions identified by Complainant fell within the normal decisions made on a day-to-day basis by an employer. The AJ also acknowledged that Complainant has a significant and extensive history of EEO activity. The AJ also noted that the primary actor in most of these actions was his first line supervisor, but there is no evidence other Complainant's speculation, that this supervisor was aware of the prior EEO activity; and that in prior complaints, Complainant had instead identified other Agency officials.
The Commission also determines that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, national origin or retaliation. We also find that the incidents of harassment identified by Complainant were not sufficiently pervasive or severe to create a hostile work environment. We discern no basis to disturb the AJ's decision.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
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
March 27, 2013
__________________
Date
1 The record reflects that in his affidavit, Complainant withdrew claim 12. Therefore, we will only address claims 1 - 11 and 13 - 16 in the instant case.
2 The record reflects that claim 16 was later amended to the instant formal complaint. On February 23, 2011, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Patel v. United States Postal Service, EEOC Appeal No. 0120110308 (April 12, 2011). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
3 The record reflects that a PS Form 13 is a general purpose form used for inter-office communication. The record further reflects that this form can also be used to file grievances or EEO complaints.
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