01a54151
11-07-2005
Mark Easton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.
Mark Easton v. United States Postal Service
01A54151
November 7, 2005
.
Mark Easton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area)
Agency.
Appeal No. 01A54151
Agency No. 1A-089-0019-03
Hearing No. 170-2004-00421X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Mail Handler at the Mid-Hudson
Processing and Distribution Center in Newburgh, New York, filed a formal
EEO complaint on October 10, 2003, alleging that the agency harassed and
discriminated against him on the bases of race (Black), religion (Muslim),
and in reprisal for prior EEO activity (arising under Title VII) when (1)
on February 16, 2003, complainant was issued an Emergency Placement in
an Off Duty Status; (2) on March 11, 2003, complainant received a Letter
of Warning; (3) on March 13, 2003, the agency created a hostile work
environment when complainant lost consciousness in the union office,
and a management official allegedly laughed at complainant before he
was taken to the hospital; (4) on March 26, 2003, a management official
adversely affected complainant's Office of Workers' Compensation (OWCP)
claim by sending false statements to negate complainant's on the job
injury; and (5) complainant was denied the opportunity to leave early
for religious services.<0>
The AJ determined that the issuance of a decision without holding a
hearing was appropriate and gave complainant (15) days from receipt of
his notice to respond and submit information.<0> The agency submitted
a response on January 21, 2005, but complainant failed to respond.<0>
Subsequently, the AJ issued a decision without a hearing, finding that
complainant did not establish a prima facie case of discrimination based
on race, religion, or reprisal. The agency adopted this decision in full.
Complainant then filed a timely notice challenging this final agency
order with the Commission. The Commission accepted complainant's appeal
pursuant to 29 C.F.R. � 1614.405.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the agency's decision adopting it, under a de novo
standard of review. See 29 C.F.R. � 1614.405(a)(stating that a
"decision on an appeal from an agency's final action shall be based
on a de novo review..."); see also EEOC Management Directive for 29
C.F.R. Part 1614 (rev. Nov.9, 1999) ("EEO MD-110"), at 9-16 (providing
that an administrative judge's "decision to issue a decision without
a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis, including on the ultimate issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
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 only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the
issuance of a decision without a hearing is not appropriate. Similarly,
an AJ may not issue a decision without a hearing if he or she actually
has to find facts first to do so.
Failure to State a Claim
We will address complainant's OWCP claim first. Complainant alleged that
agency sent OWCP false statements to negate that complainant had an on the
job injury which he believe prevented him from collecting OWCP benefits.
The agency dismissed this claim in its Partial Acceptance/Dismissal
Letter dated January 6, 2004 for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1). As the Commission has previously held,
where a complainant alleges that the agency discriminated in a manner
pertaining to the merits of the workers' compensation claim, for example,
by submitting paperwork containing allegedly false information, then the
complaint does not state an EEO claim. Pirozzi v. Department of the Navy,
EEOC Request No. 05970146 (October 23, 1998)(allegedly false statements
made by agency to OWCP during OWCP's processing of a workers' compensation
claim goes to merits of compensation claim); Hogan v. Department of
the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing
an allegation that agency officials provided misleading statements to
OWCP would require the Commission to essentially determine what workers'
compensation benefits the complainant would likely have received); Reloj
v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15,
1998) (allegation that agency's provision of false information to the OWCP
resulted in denial of benefits is a collateral attack on OWCP's decision
and, thus, fails to state a claim). Because complainant's complaint in
the case at hand concerns allegedly false information provided to the
OWCP by the agency, the allegation fails to state a claim. Therefore,
we agree with the agency in finding that the AJ did not err when he did
not address this claim in his decision.
Disparate Treatment Discrimination
We find that the AJ properly analyzed complainant's disparate
treatment claim under the three-part evidentiary scheme fashioned by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this standard, the complainant 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). However, 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 where the complainant must prove by a preponderance of the
evidence that the agency's explanation is 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).
In the instant case, complainant alleged that he was discriminated against
on the basis of race and religion when the agency placed him on Off Duty
Status on February 16, 2003, and when complainant received a Letter of
Warning on March 11, 2003. The record indicates that on February 16,
2003, complainant was involved in an incident with another co-worker
where he called the co-worker derogatory names. The agency placed
complainant on Off Duty Status in accordance with Postal Rules and
Regulations, specifically Articles 16 and 19 of the National Agreement.
The agency also issued complainant a Letter of Warning on March 11, 2003,
which was based upon the February 16, 2003 incident. The AJ concluded
that complainant did not establish a prima face case of discrimination
based on race or religion because he did not identify similarly situated
employees outside of his protected class who were treated more favorably.
Of even more significance, the AJ determined that complainant did not
offer any concrete evidence that would support an inference that the
agency's disciplinary actions were motivated by unlawful discrimination
based on his race or religion. We agree with the AJ's finding that
complainant has not established a prima facie case based on race or
religion. Assuming arguendo that a prima facie case had been made, we
also agree with the AJ in finding that the agency had just cause to issue
this discipline as a preventative and/or protective measure. Further,
the agency's disciplinary actions were legitimate and nondiscriminatory,
and complainant has failed to rebut them as pretext.
Reprisal Discrimination
In addition to finding that complainant fails to make a prima facie case
of discrimination based on race and religion, we also find that the record
does not support an inference of reprisal discrimination. Complainant may
establish a prima facie case of reprisal by showing that: (1) he engaged
in protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425 F. Supp. 318
(D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to claims of reprisal), and Coffman v. Department of Veteran
Affairs, EEOC Request No. 05960473 (Nov. 20, 1997). The nexus may be
shown by evidence that the adverse treatment followed the protected
activity within such a period of time and in such a manner that a
reprisal motive is inferred. See Clay v. Dep't of Treasury, EEOC Appeal
No. 01A35231 (Jan. 25, 2005). Here, it is undisputed that complainant
engaged in prior protected activity when he filed an EEO complaint on
March 8, 2000, however, we agree with the AJ in finding that complainant
has failed to show a nexus between this prior EEO activity and the
allegations raised in this complaint. Our case law holds that this
nexus may be shown by evidence that the adverse treatment followed the
protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. See Clay v. Dep't of Treasury, EEOC
Appeal No. 01A35231 (Jan. 25, 2005). Therefore, we agree with the
AJ's finding that the passage of approximately three years between the
protected activity and the allegations raised in the instant complaint
do not give rise to an inference of retaliatory motive.
Hostile Work Environment Claim
Complainant asserted in his complainant that he was subjected to a hostile
work environment when on March 13, 2003, he lost consciousness in the
union office, and a management official allegedly laughed at complainant
before being taken to the hospital. It is important to note that in
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57,67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive so as to alter the conditions of the complainant's
employment. The Court explained that an �objectively hostile or abusive
work environment [is created] when a reasonable person would find
[it] hostile or abusive� and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. We also note that unless the conduct is very severe, a
single incident or a group of isolated incidents will not be regarded as
creating a hostile work environment. See James v. Department of Health
and Human Services, EEOC Request No. 05940327 (September 20, 1994);
Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982). In the
case at hand, we find that the March 13th incident is isolated and is
not sufficiently severe or pervasive as to alter the terms, conditions,
or privileges of complainant's employment. Accordingly, complainant
fails to state an actionable claim of hostile work environment.
Religious Accommodation Claim
Under Title VII, employers are required to accommodate the religious
practices of their employees unless a requested accommodation is
shown to impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. �
1605.2(b)(1). The traditional framework for establishing a prima
facie case of discrimination based on religious accommodation requires
complainant to demonstrate that: (1) he has a bona fide religious belief,
the practice of which conflicted with employment; (2) he informed the
agency of this belief and conflict; and (3) the agency nevertheless
enforced its requirement against complainant. Heller v. EBB Auto Co.,
8 F.3rd 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas
R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Once the prima facie case is established, the burden shifts to
the agency to demonstrate that it cannot reasonably accommodate
complainant without incurring undue hardship, or that complainant has
been accommodated. Title VII, 701(j), 42 U.S.C. 2000e(j); 29 C.F.R. �
1605.2(c)(1); Protos v. Volkswagen of America, Inc., 797 F.2d 129,
133 (3rd Cir. 1986). The Supreme Court has found that accommodations
which create more than de minimis monetary or efficiency costs cause
undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977). A showing of undue hardship cannot be merely hypothetical, but
must instead include evidence of an actual imposition on coworkers or
disruption of work schedules or routines. Tooley v. Martin Marietta,
648 F.2d 519, 521 (4th Cir. 1987).
In this case, complainant alleged that he was denied the opportunity to
leave early on Fridays for religious purposes. Complainant explained
in his affidavit that his supervisor agreed to change his schedule to
leave earlier on Fridays but that he could not promise every Friday.
Complainant agreed to this arrangement so long as he did not miss his
religious needs three Fridays in a row. We find that complainant failed
to show that the agency denied complainant a religious accommodation.
In fact, based on the information that complainant provided, the agency
agreed to allow complainant to leave early on Fridays but could not
promise every Friday. Further, there is no concrete evidence that the
agency denied complainant his religious needs three Fridays in a row.
CONCLUSION
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. For these reasons, we AFFIRM
the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
November 7, 2005
__________________
Date
0 1The agency asks the Commission to find that the Administrative Judge
(AJ) did not err when he failed to address complainant's hostile work
environment, religious accommodation, and OWCP claims because complainant
never objected to the issues that were accepted for investigation.
Specifically, the agency sent complainant a Partial Acceptance/Dismissal
letter dated January 6, 2004, notifying him which issues had been accepted
for investigation, and which issues had been dismissed. The agency
accepted claims (1) and (2) but dismissed claim (4) for failure to
state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). We are unable
to ascertain why the agency's Partial Acceptance/Dismissal letter did
not address the hostile work environment and religious accommodation
claims, given that complainant raised these issues in his complainant,
with an EEO Counselor, and in his affidavit. Nonetheless, the Commission
will consider these claims in this decision.
0 2An AJ should not issue a decision in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
Petty v. Department of Defense, EEOC Appeal No. 01A24206 at 15, (July 11,
2003).
0 3Complainant argues on appeal that he did not respond within 15 days
because he was denied official time. However, complainant offers no
evidence in the record of his request for official time nor is there
any evidence that the agency denied this alleged request.